Cabreja v. Astrue, No. 1:2011cv00130 - Document 13 (D.R.I. 2012)

Court Description: MEMORANDUM AND ORDER granting 10 Motion to Reverse Decision of the Commissioner; denying 12 Motion to Affirm the Decision of the Commissioner. So Ordered by Chief Judge Mary M. Lisi on 1/27/2012. (Duhamel, John)

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Cabreja v. Astrue Doc. 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND YAHAIRA CABREJA, Plaintiff v. C.A. No. 11-130-ML MICHAEL ASTRUE COMMISSIONER OF SOCIAL SECURITY, Defendant MEMORANDUM AND ORDER The plaintiff, Yahaira Cabreja ("Cabreja") brings this action under section 405(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking this Court's review of the final decision of the Commissioner of Social Security (the "Commissioner"). Cabreja challenges the decision of the Administrative Law Judge (the "ALJ") denying benefits Cabreja's and for Supplemental for application Social Security Security Income, Disability based on his determination that Cabreja is not disabled under Sections 216(i), 223 (d), action and 1614 (a) (3) (A) before this of the Social Security Act. Court, Commissioner's final Cabreja decision, a requests reversal finding of disability, In the of the and an award of benefits or, in the alternative, a remand for a rehearing. The Commissioner seeks an order affirming his decision. I. Procedural Posture On April 2, 2009, Cabreja filed applications for Disability Insurance Benefits ("SSDI") and for Supplemental Security Income Benefits ("SSI"), alleging disability as of January 1, 2009. (Tr. Dockets.Justia.com 12, 121-122, 128-134). Her applications were denied at the initial and reconsideration stages. (Tr. 60-63, 65-67, 86-89, 93-96). October 12, 2010, a hearing was held before the ALJ. represented by an Baruch ("Baruch") attorney. Impartial gave testimony. (Tr. vocational 30-51) . On Cabreja was expert Ruth On October 15, 2010, the ALJ issued a written decision, finding that Cabreja was not disabled between January 1, 2009 and October 15, 2010. 20). On January 28, 2011, (Tr. 6- the Decision Review Board notified Cabreja that it had not completed its review of her claim during the time allowed and that, therefore, the ALJ's decision had become the Commissioner's final decision. II. (Tr. 1-3). Factual Background Cabreja was born on July 9, 1976. On the alleged onset date of her averred disability, Cabreja was thirty-two years old. 34, 121) . (Tr. After moving from Puerto Rico to Rhode Island in 1994, Cabreja completed high school in 1995, obtained her license as a cosmetologist, and worked as a hair stylist from 2001 through 2008. (Tr. 160-163). Cabreja alleged disability as of January 1, 2009 due to scoliosis pain. (Tr. 121, 159). At the time of the hearing, Cabreja was living with her boyfriend and two children. According to Cabreja, (Tr. 35). she is able to read and write a little in English, but she felt an interpreter was needed at the hearing. 2 (Tr. 33-34, 158) . 1 III. Standard of Review Pursuant to 42 U.S.C. § 405(g) of the Social Security Act, a district court has the "power to enter, transcript of the record, a judgment upon the pleadings and affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a 405(g). any fact, if supported § of by substantial evidence," are deemed 42 U.S.C. § 405(g); Manso-Pizarro v. Sec'y of Health Human Servs., findings u.s.c. 42 In that determination, the Commissioner's findings "as to conclusive. & rehearing." 76 F.3d 15, fact evidence . ") . are In 16 (1st Cir. conclusive reviewing if the 1996) ("The Secretary's supported by substantial Commissioner's decision, "substantial evidence" is "more than a mere scintilla" of evidence. Currier v. Sec'y of Health, Ed. and Welfare, 612 F.2d 594, 597 (1st Cir. 1980) (citing Richardson v. S.Ct. 1420, 1427, 28 Perales, L.Ed.2d 842 402 U.S. (1971)). The 389, 401, 91 Commissioner's findings are upheld if "a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Irlanda Ortiz v. Sec' y of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citing Rodriguez v. Sec'y l The ALJ concluded that, based on his observation at the hearing that Cabrej a "would shake her head or answer questions prior to the translation," and the fa.ct that she completed the Function Report on her own, Cabreja's English language abilities were greater than she alleged. (Tr. 16 n. 1). 3 of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). Even if "the record arguably could support a different conclusion," the Commissioner's decision is upheld if there is substantial evidence to support such decision. Human Servs., Irlanda Ortiz v. 955 F. 2d at 7 69. Sec' y of Health and Because the responsibility of determining issues of credibility and drawing inferences from the record evidence falls to the Commissioner, the Court does engage in resolving any conflicts in the evidence. v. Sec'y of Health & Human Servs., not Id.; Rodriguez 647 F.2d at 222 (noting that "the resolution of conflicts and the determination of the ultimate question of disability" are for the Commissioner, not the courts) . IV. Social Security Disability Standard In order to qualify for disability insurance benefits and/or supplemental social certain requirements, security income, an individual must meet including that he or she is "disabled" as defined by the Social Security Act. Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to months." individual last for a continuous period of not 42 U.S.C. §§ 416(i) (1), 423(d) (1) (A). less than 12 In addition, an is deemed disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, 4 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423(d) (2) (A). To determine whether an applicant is disabled, Security Administration has evaluation process. 20 established a C.F.R. § the Social five-step 416.920 sequential (a). First, the Commissioner must determine whether an applicant is engaged in 20 C.F.R. substantial gainful activity. § 416.920 (a) (4) (i). Second, the Commissioner must consider the medical severity of the impairment(s). Unless the applicant is found to have a severe medically determinable physical or mental impairment, will not be found disabled. Third, 20 C.F.R. § 416.920 he or she (a) (4) (ii). the Commissioner determines whether the applicant has an impairment that meets or equals one of the listings in Appendix 1 to Subpart P of Part Regulations. 20 Commissioner functional 404 C.F.R. considers capacity to of Title § 20 416.920 whether the perform of the Code of Federal (a) (4) (iii). applicant past relevant Fourth, has the work. the residual If the applicant can still perform past relevant work, he or she is not considered disabled. 20 C.F.R. 416.920 (a) (4) (iv). § At the fifth and last step, the Commissioner considers the applicant's residual 5 functional capacity experience to and his determine or her whether adjustment to other work." age, the education claimant and work make an If it is determined that the applicant can make an adjustment to other work, he or she is not considered disabled. of this 20 C.F.R. § 416.920 (a) (4) (v). sequential inquiry, production and proof." (1st Cir. 2001). the At the first four steps applicant the Freeman v. Barnhart, burden 274 F.3d 606, of 608 Once the applicant has met his or her burden at the first four steps, the burden shifts to the Commissioner to forward with evidence of specific jobs in the national economy that the applicant can still perform." Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). V. The ALJ's Decision The ALJ found that Cabrej a had not engaged in substantial gainful activity since January 1, 2009. determined that Cabreja suffered from (Tr. 14, two severe 2). He also impairments: right-sided carpal tunnel syndrome and degenerative disc disease. (Tr. 15, 3). He concluded, however, that Cabreja's impairment(s) did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Specifically, the ALJ found that Appendix 1. (Tr. 15, 4). [d] espite the claimant's combined impairments, the medical evidence does not document listing-level severity, and no acceptable medical source has mentioned findings equivalent in severity to the criteria of any listed impairment, 6 individually or in combination." Id. With respect to Cabreja's residual functional capacity, the ALJ found that she could perform less than the full range of light work as defined in 20 C.F.R. 404.1567(b) occasional and 416.967(b) climbing of and that stairs she (ramps, was limited ladders, to ropes, (1) and scaffolds); (2) occasional balancing, stooping, kneeling, crouching and crawling; and (3) occasional right gross manipulation. 15, 5.) (Tr. Based on Cabreja's limited residual functional capacity, the ALJ found that Cabreja could not perform her past relevant work as a hairstylist. (Tr. 18, 6). However, when considering Cabreja's age, education, work experience, and residual functional capacity, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Cabreja could perform. (Tr. 19, 10). The ALJ noted that "[t]he vocational expert testified that given all of these factors [Cabreja] would be able to perform the requirements of representative occupations such as a surveillance system monitor with 154 jobs locally and 600,566 nationally." (Tr. 19, 10). Because the ALJ determined that Cabreja was not disabled, as defined in the Social Security Act, her application for disability insurance supplemental social security income was denied. VI. benefits and (Tr.20). Plaintiff's Position Cabreja raises four separate issues in her motion to reverse the Commissioner's final decision: First, Cabreja asserts that the 7 ALJ failed to summarize accurately testimony and particularly, the vocational expert's that the ALJ's finding that 600,000 surveillance system monitor jobs exist in the national economy is not supported by substantial evidence. Second, Cabreja states that the ALJ failed to properly evaluate Cabreja's ability to speak and understand English. Third, Cabreja suggests that the ALJ's refusal to grant the expert medical opinion of treating hand specialist Dr. Hubbard controlling evidence. findings Finally, regarding evidence. 1. weight she was not maintains Cabreja were supported that not substantial ALJ' s the by credibility supported by substantial Pltf.'s Mem. 4. The Vocational Expert's Testimony The ALJ determined that, testimony that an based on the vocational expert's individual limited to Cabreja's residual functional capacity could not work as a hairdresser, Cabreja was unable to perform any past relevant work. (Tr. 18, determination is not challenged by either party. CJ[ 6). That However, Cabreja alleges two particular errors in the ALJ's decision regarding the vocational expert's vocational expert testimony. indicated First, that, she given asserts Cabreja's that the residual functional capacity, the only occupation available was that of surveillance monitor, system whereas the ALJ suggested position was representative in nature. points out that the ALJ's statement 8 that found that the Second, Cabreja there are 600,566 surveillance system monitor positions nationally was in error, as the vocational expert testified that there are only 16,566 such positions nationwide. The ALJ, therefore, did not make a finding whether 16,566 jobs represent a "significant number." Pltf.'s Mot. 6. In response, the government argues that ( 1) "the identification of even one occupation is sufficient to meet the Commissioner's burden at step five so long as the position exists in significant numbers;" and (2) the 16,566 surveillance system monitor positions in the United States constitute "a significant number in the national economy." 20 C.F.R. § Def.'s Mot. 11. 404.1566(b) and 20 C.F.R. § 416.966(b) 2 , addressing "Work which exists in the national economy," explain the process as follows: How we determine the existence of work. Work exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualifications. Isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where you live are not considered "work which exists in the national economy". We will not deny you disability benefits on the basis of the existence of these kinds of jobs. If work that you can do does not exist in the national economy, we will determine that you are disabled. However, if work that you can do does exist in the national economy, we will determine that you are not disabled. 20 C.F.R. §§ 404.1566(b), 2 Section 404.1566 and Section 416.966 provide parallel regulations regarding qualifications for disability insurance benefits and supplemental security income, respectively. 9 416.966 (b) (emphasis added) . The plain language of Sections 404.1566(b) and 416.966(b) indicate that it is sufficient if there exists one occupation which the applicant is capable of performing. See Sprague v. Astrue, 2011 WL 1253894 at *3 (D.Me. Mar. 30, 2011) (noting that the court "has frequently held in Social Security cases that the availability of a single job for the plaintiff meets the commissioner's burden at Step 5."); Brun v. Barnhart, 2004 WL 413305 at *5 (D.Me. Mar. 3, 2004) ("A single occupation is sufficient to meet the commissioner's burden at this stage of the sequential evaluation process."); Welch v. Barnhart, 2003 WL 22466165 (D.Me. Oct. 31, 2003) (same); see also, Wright v. Sullivan, 900 F. 2d 67 5, 67 9 (3d Cir. 1990) (holding that identifying at least one occupation in the national economy which the claimant can perform satisfies Commissioner's burden at Step Five); Dumas v. Schweiker, 1983) (evidence of only one 712 F.2d 1545, 1553 (2d Cir. job considered satisfactory at Step Five.) Although the ALJ stated in his decision that, according to the vocational expert's testimony, the requirements of Cabreja "would be able to perform representative occupations such as a surveillance system monitor," the vocational expert testified that this was the only occupation available. federal Nevertheless, the code of regulations indicates that even one possible occupation satisfies the Commissioner's burden at Step Five. 10 Therefore, the inconsistency between the vocational expert's testimony and the ALJ's finding does not, by itself, provide a basis for a reversal of the Commissioner's final decision or for a remand. The Island, vocational there are expert 154 further protective sedentary, so it's a small number. are 16,566." that (Tr. 47). there are testified services that " [ i] n offices Rhode unskilled And in the United States, there It is undisputed that the ALJ's statement 600,566 nationally was in error. surveillance system monitor positions Based on this erroneous number, the ALJ found that the claimant could make a successful adjustment "to other work that exists economy." However, in significant numbers in the national the actual number of suitable positions was less than 3% of what the ALJ considered "significant." The government suggests that this error is not fatal to the ALJ's ruling because another court in the First Circuit has concluded that 10,000 to 11,000 positions are a significant number in the national economy. Def.'s Mot. 11 (citing Vining v. Astrue, 720 F.Supp.2d 126, 128 (D.Me. Jul. 1, 2010)). In Vining, however, the vocational expert testified that there were three suitable jobs [(a), (b), and (c)] that the claimant could perform and that, nationally, there existed (a) 34,000, 14,000 15,000 Commissioner positions determined for that (b) 10,000- 11,000, and (c) these these jobs, respectively. numbers, demonstrated sufficient work in the national 11 in the The aggregate, economy. In his review of the Commissioner's final decision, the Magistrate Judge found that the claimant was capable only of performing job (b) and that 10,000 - economy, 11,000 was a significant number in the national which was a finding that the Commissioner never made. However, because the claimant failed to raise that particular argument with the Magistrate Judge, the Maine District Court in Vining noted that it would not address the question whether the Magistrate Judge's finding was appropriate. Vining v. Astrue, 720 F.Supp. 2d at 128 (noting that, if the Commissioner had not decided whether the single category of jobs met the burden of demonstrating sufficient work in the national economy, "then probably a reviewing court should not proceed to decide that one category alone is sufficient ... "). conclusion in In other words, while the Commissioner's final Vining that the claimant was not disabled was affirmed- although only 10,000 - 11,000 suitable jobs existed in the national economy - Vining does not establish that, generally, similar numbers are deemed significant at Step Five in other cases. 20 C.F.R. § 404.1560 places the burden on the Commissioner to provide evidence at Step Five "that demonstrates that other work exists in significant numbers in the national economy" that the claimant can do, given his or her residual functional capacity and vocational factors. 20 C.F.R. § 404.1560(c) (2). The term "significant numbers" is not defined and "[t] here is no bright line boundary separating a 'significant 12 number' from insignificant numbers of jobs." Lenon v. Apfel, 191 F. Supp. 2d 968 (W.D.Tenn, 2001) (citing Hall v. Bowen, 837 F.2d 272, 275) (6th Cir. 1988)). Instead, a decision of what constitutes "significant numbers" is "ultimately left to the [ALJ' s] common sense in weighing the statutory language as applied to a particular claimant's factual situation." Hall v. Bowen, 837 F.2d at 275. In the instant case, the ALJ's determination that there were a significant number of suitable jobs in the national economy was not supported by substantial evidence, but was based on an erroneous figure that varied significantly from the actual number presented by the vocational expert. Because the Commissioner's final decision does not include a determination whether 16,566 positions demonstrate sufficient work in the national economy, this Court will not proceed to make a decision which should be remanded to the Commissioner to make that decision in the first place. SEC v. Chenery Corp., 318 U.S. 80, 88, See 63 S.Ct. 454, 87 L.Ed.626 (1943) ("If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.") . In other words, this Court is of the opinion that the ALJ failed to make a necessary determination at Step Five of the sequential analysis and that, therefore, a limited remand is appropriate. 2. The ALJ's Evaluation of Cabreja's Ability to Speak and 13 Understand English Pursuant to 20 C.F.R. §§ 404.1564 and 416.964, a claimant's education, including his or her inability to communicate in English, is considered when evaluating a claimant's ability to meet vocational requirements. Specifically, those federal regulations provide: Inability to communicate in English. Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in. 20 C.F.R. §§ 404.1564(b) (5) and 416.964(b) (5). The ALJ found that Cabrej a "has at least education and is able to communicate in English." He noted that Cabreja is a high school (Tr. 19, "able to read and write a little in English, but felt an interpreter was needed at the hearing. 16). In a footnote, 8). the ALJ noted that "at the hearing, (Tr. the claimant would shake her head or answer questions prior to the translation . own in English." [and she] completed the Function Report on her Tr. 16, 5., n. 1). From that, the ALJ concluded that Cabreja's "English language abilities are greater than she alleges." As noted before, the role of determining issues of credibility 14 falls to the Commissioner, and the Court resolving any conflicts in the evidence. does not engage in Irlinda Ortiz v. Sec'y of Health and Human Serv., 955 F.2d at 769. Therefore, as long as the Commissioner's conclusions are supported by substantial evidence, his findings of fact are conclusive. ·.Although Cabreja maintains that she is unable to communicate in English, the ALJ pointed out that she "managed to obtain a high school diploma and cosmetology certificate in the United States" and that Cabreja "appeared to understand questions" posed to her [in English] at the hearing. (Tr. 17-18, 5.) At the hearing, Cabreja's counsel informed the ALJ that Cabreja "does speak some English." (Tr. 33). Upon direct question by the ALJ: "How well do you speak English? Do you understand what I am saying without the interpretation?," Cabreja responded: "Si." (Tr. 34). Cabreja also confirmed her understanding by saying: "Si" when the ALJ explained: "We'll start out in English, and if you don't understand what I am saying, we' 11 stop and have the interpreter interpret for you, okay?" Id. The ALJ specifically questioned Cabreja why, if she had graduated from high school in America, she maintained that she could not speak English. (Tr. 35). In response, Cabreja stated (through the provided interpreter) that, after she moved to Rhode Island, she "went to high school for about a year and a half, but [she] didn't learn that much." (Tr. 36). Nevertheless, she acknowledged that she could read or write English "a little" and 15 that she had obtained a license in cosmetology. Id. Based on the questions and observations by the ALJ during the hearing, as well as the acknowledged factual circumstances in this case, the abilities ALJ's are conclusion greater than that she Cabreja's alleges are English language well-supported by substantial evidence and do not provide a basis for reversal or remand. 3. The ALJ's consideration of Dr. Leon Hubbard's opinion As noted by the ALJ in his Decision, Dr. Hubbard was consulted by Cabreja for carpal tunnel syndrome beginning in September 2009. (Tr. 16, 5.) According to Dr. Hubbard, an electromyography study ("EMG") showed that Cabreja had bilateral carpal tunnel syndrome. Dr. Hubbard also stated that Tinel's, Phalen's, and carpal compression tests were positive on the right side and that Cabreja expressed to him that she would like to proceed with surgery on the right wrist and would contact him for scheduling. Hubbard described Cabrej a's chief complaints as (Tr. 373). Dr. "numbness and tingling in the right hand" and noted that she had "full range of motion of shoulder, elbow wrist and hand." (Tr. 374). Dr. Hubbard also completed a Physical Capacity Evaluation form, in which he stated that Cabreja could frequently lift and carry up to five pounds, and occasionally lift and carry up to ten pounds, as well as engage in simple grasping and reaching with either hand. 381) . 16 (Tr. Cabreja now claims that the ALJ failed to provide a reason why he did not give Dr. Hubbard's medical opinion controlling weight. Pltf.'s Mot. 8. Cabreja also objects to the ALJ's alleged failure to explain why he found no limitations with respect to her left hand. Id. at 9. 20 C.F.R. § 404.1527 (d)(2), on which Cabreja relies, Pltf.'s Mot.· 9, states, inter alia, that see we give more weight to opinions from your treating source," and, we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment (s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent record, we with will the other give it substantial controlling 404.1527 (d) (2) (emphasis added) . evidence weight." in your case 20 C.F.R. § The provision also states that if the treating source's opinion is not given controlling weight, the factors set forth in the section will be applied and will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." Id. In his decision, the ALJ separately discusses, in detail, the opinions of both treating and non-treating physicians regarding Cabreja's impairments and explains what weight he assigns to their respective opinions. opinion reaching, that the (Tr. 16-18). Cabreja ALJ is limited assigned it 17 no With respect to Dr. Hubbard's to occasional weight because grasping is and not supported by the evidence of record," as Cabreja remained "capable of performing a variety of activities of daily living." (Tr.18). The ALJ also notes that Cabreja never scheduled or underwent the requested surgery for carpal tunnel syndrome of her right hand. (Tr. 16). Following a May 2010 EMG, Dr. Frederick Harrington, who performed the study, right-sided carpal concluded only that Cabreja suffered from tunnel syndrome. Cabreja then sought an evaluation with Dr. Chopra in June 2010, complaining of pain in her right wrist from carpal tunnel syndrome. Cabreja next consulted with Dr. Steven McCloy who found that she suffered from right-sided carpal tunnel syndrome. (Tr. 17). In other words, the medical record submitted to the ALJ provides no further support for Dr. Hubbard's conclusion that Cabreja suffered from bilateral carpal tunnel syndrome. Even Dr. Hubbard's own records appear to be inconsistent with that conclusion, as they specify that Tinel's, Phalen's and carpal compression tests are positive only on the right. (Tr. 373-374). As long as the ALJ' s decision is supported by substantial evidence, the decision is conclusive, and any resolution of differing opinions by physicians is up to the ALJ, not the Court. Rodriguez Pagan v. Sec'y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (noting that "the resolution of such conflicts in the [medical] evidence is for the Secretary."). Under the circumstances of this case, the Court is of the opinion that the 18 ALJ' s decision not to give controlling weight to Dr. Hubbard's opinion was supported by the evidence in the record and does not provide a basis to reverse or remand the case. 4. ALJ's Credibility Determination Cabreja's final challenge relates to the ALJ's finding that "Cabreja's complaints were not credible to the degree alleged." Pl tf.' s Mot. 9. Specifically, Cabrej a disagrees with the ALJ' s conclusion that she speaks more English than she has alleged. at 10. Id. She also asserts that "the ALJ relies heavily upon the fact that Cabrej a evidently elected not to have right carpal tunnel surgery," and points out that the ALJ never asked "why she chose against surgical intervention." Id. With respect to Cabreja's English language abilities, the ALJ supported his conclusion- that Cabreja's English was better than she represented - with undisputed facts in the record, including her educational history, as well as his personal observation during the application hearing. See Section 2 herein. Regarding Cabreja's choice not to schedule or proceed with the surgery she had requested, there is nothing to indicate that the ALJ's decision was based primarily on this fact. considered Cabrej a's Rather, the ALJ testimony about her daily activities, submitted medical records, her and the opinions of five physicians consulted by Cabreja (Drs. Robertson, Hubbard, Harrington, Chopra, and McCloy) and one non-examining medical consultant (Dr. Tonelli) . 19 Based on all the submitted evidence, Cabreja's expected to the ALJ concluded that (1) determinable impairments could reasonably be cause the alleged concerning the symptoms," intensity, and (2) Cabreja's persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent" with the functional capacity. finding was well ALJ' s (Tr. assessment 15 - supported by 16, <[ of 5). Cabreja' s As such, substantial residual the ALJ' s evidence and is, therefore, deemed conclusive. In sum, the ALJ's conclusions are supported by substantial evidence in Steps One through Four, which provide, in significant part, the basis for his decision that Cabreja not been under a disability, as defined in the Social Security Act, from January 1, 2009, through [October 15, 2010] ." However, the ALJ's finding in Step Five, that other work exists in significant numbers in the national economy that functional capacity, the claimant can do, age, education, given her residual and work experience, was apparently based on a number of suitable jobs nationwide that was significantly larger (600,556 versus 16,556) actually presented by the vocational expert. than the number Because it falls to the Commissioner, not the Court, to make a determination whether, even at the lower number, the Social Security Administration has met its burden to demonstrate that such work exists, a remand for the sole purpose of determining that question is appropriate in 20 this case. Conclusion For the Affirm the reasons Decision stated herein, of the the Defendant's Motion to Commissioner is DENIED Plaintiff's Motion to Reverse the Decision is GRANTED. and the The case is REMANDED for a rehearing on the sole issue of whether there are jobs that the claimant can perform which exist in the national economy in significant numbers. SO ORDERED. /s/ Mary M. Lisi Mary M. Lisi Chief United States District Judge January 27, 2012 21

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