Carlos Gutierrez v. Commissioner of Social Securit , 740 F.3d 519 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS GUTIERREZ, No. 12-15472
Plaintiff-Appellant,
D.C. No.
v. 1:11-cv-00105-
DLB
COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Argued and Submitted
December 6, 2013—San Francisco, California
Filed January 23, 2014
Before: Stephen S. Trott and Mary H. Murguia, Circuit
Judges, and David A. Ezra, District Judge.*
Opinion by Judge Trott
*
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
2 GUTIERREZ V. COMM’R OF SOC. SEC.
SUMMARY**
Social Security
The panel affirmed the district court’s decision affirming
the Commissioner of Social Security’s denial of claimant’s
application for supplemental security income under the Social
Security Act.
The Administrative Law Judge (“ALJ”) conducted the
five-step sequential evaluation process described in 20 C.F.R.
§ 416.920 and concluded at step five that the claimant did not
suffer from a disability because he could perform a
significant number of jobs in the national economy. The
panel held that the ALJ did not err by defining “region” for
purposes of 42 U.S.C. § 1382c(a)(3)(B) as the State of
California, and 2,500 jobs in California constituted a
significant number of jobs in the region. The panel also held
that substantial evidence supported the ALJ’s decision that
25,000 national jobs constituted “work which exist[ed] in
significant numbers . . . in several regions of the country.”
42 U.S.C. § 1382c(a)(3)(B).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GUTIERREZ V. COMM’R OF SOC. SEC. 3
COUNSEL
Lawrence Rohlfing (argued), Santa Fe Springs, California, for
Plaintiff-Appellant.
Elizabeth Firer (argued), Special Assistant United States
Attorney; Benjamin B. Wagner, United States Attorney;
Donna L. Calvert, Acting Regional Chief Counsel, San
Francisco, California, for Defendant-Appellee.
OPINION
TROTT, Circuit Judge:
OVERVIEW
Carlos Gutierrez filed claims for supplemental security
income (“SSI”). The Commissioner denied the claims by
initial determination, and Gutierrez requested a de novo
hearing by an Administrative Law Judge (“ALJ”). The ALJ
conducted the five-step sequential evaluation process
described in 20 C.F.R. § 416.920 and concluded at the fifth
step that Gutierrez did not suffer from a disability because he
could perform a significant number of jobs in the national
economy. The ALJ found that despite Gutierrez’s residual
functional capacity, age, education, and work experience, he
could make the vocational adjustment to other work as an
assembler (1,500 jobs in the State of California and 15,000
jobs in the nation) or as an almond blancher (1,000 jobs in the
State of California and 10,000 jobs in the nation). The
district court denied his appeal from the Commissioner’s final
decision.
4 GUTIERREZ V. COMM’R OF SOC. SEC.
Gutierrez raises one issue on appeal: whether the ALJ
failed to make an adequate showing that a significant number
of jobs existed in the region in which Gutierrez lived or in
several regions of the country. This issue in turn requires us
to grapple with the meaning in the controlling statute of the
term “region,” which the Commissioner has not yet formally
defined.
We have jurisdiction over this timely appeal pursuant to
42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Carlos Gutierrez (“Gutierrez”), who lives in Bakersfield,
California, filed claims in 2005 and 2006 for SSI under Title
XVI of the Social Security Act, asserting that he had been
disabled since September 1, 2000, due to his various
recognized medical and mental conditions.
The Social Security Commissioner denied Gutierrez’s
claims, concluding that although Gutierrez may not have been
able to perform his past work, based on his age, education,
and past work experience, he could still do other physically
less demanding work. Thus, Gutierrez’s condition was not
severe enough to prohibit him from working.
On April 5, 2007, Gutierrez requested reconsideration of
the Commissioner’s decision, which was denied.
Gutierrez requested a de novo hearing before an ALJ on
August 15, 2007. The ALJ used the familiar five-step
sequential evaluation process outlined in 20 C.F.R. § 416.920
to determine whether Gutierrez suffered from a “disability”
GUTIERREZ V. COMM’R OF SOC. SEC. 5
under the Social Security Act. Gutierrez passed the initial
four steps, but his claim foundered on step five.
After considering Gutierrez’s age, education, work
experience, and residual functional capacity, the ALJ
concluded that jobs existed in significant numbers in the
national economy which Gutierrez could perform. Relying
on the vocational expert’s (“VE”) testimony at the hearing on
November 5, 2009, the ALJ found that Gutierrez could work
as an assembler, as there were 1,500 jobs available in
California and 15,000 such jobs available nationally. The
ALJ also found that Gutierrez could work as an almond
blancher, because there were 1,000 jobs available in
California and 10,000 such jobs available nationally. Thus,
because Gutierrez could perform 2,500 jobs in California and
25,000 jobs in the nation, the ALJ concluded that Gutierrez
did not suffer from a disability under the Social Security Act.
The Appeals Council denied Gutierrez’s request for
review. Thus, the ALJ’s decision became the final decision
of the Commissioner of Social Security.
Gutierrez brought a civil action in the Eastern District of
California. The district court determined that the ALJ’s
decision was supported by substantial evidence and was
based on proper legal standards. Gutierrez v. Astrue, No.
1:11-cv-0105-DLB, 2012 WL 259141, at *6 (E.D. Cal. Jan.
26, 2012).
First, the court addressed Gutierrez’s primary argument
that the ALJ had erred at step five by failing to demonstrate
that Gutierrez could perform “substantial gainful work which
exist[ed] in the national economy.” Gutierrez asserted that
even though 42 U.S.C. § 1382c(a)(3)(B) defined “work which
6 GUTIERREZ V. COMM’R OF SOC. SEC.
exists in the national economy” as “work which exists in
significant numbers either in the region where such individual
lives or in several regions of the country,” the ALJ erred by
considering the State of California to be a “region” for
purposes of § 1382c(a)(3)(B).
In rejecting Gutierrez’s argument, the court relied on De
La Cruz v. Astrue, No. 1:08-cv-0782-DLB, 2009 WL
1530157, at *10–11 (E.D. Cal. May 28, 2009), where the
same court had previously rejected similar arguments.
Gutierrez, 2012 WL 259141, at *4–5. In De La Cruz, the
court held that 2,756 jobs in California was sufficient for
purposes of § 1382c(a)(3)(B). 2009 WL 1530157, at *10–11.
The court in De La Cruz looked to Barrett v. Barnhart,
368 F.3d 691, 692 (7th Cir. 2004) (per curiam), in which the
Seventh Circuit had acknowledged that “vocational experts
who testify . . . concerning availability of jobs that the
applicant has the physical ability to perform almost always
confine their testimony to indicating the number of such jobs
that exist in the applicant’s state, or an even smaller area.”
Id. at *10 (quoting Barrett, 368 F.3d at 692). After
recounting the reasoning in De La Cruz, the district court held
that 2,500 positions across California constituted work that
existed in significant numbers in the region where Gutierrez
lived.
Second, the court addressed Gutierrez’s contention that
the court should adopt the geographical delineations provided
by the Metropolitan and Micropolitan Statistical Areas to
define “region.” According to the Office of Management and
Budget, a Metropolitan and Micropolitan Statistical Areas is
“an area containing a recognized population nucleus and
adjacent communities that have a high degree of integration
with that nucleus.” Standards for Defining Metropolitan and
GUTIERREZ V. COMM’R OF SOC. SEC. 7
Micropolitan Statistical Areas, 65 Fed. Reg. 82228-01 (Dec.
27, 2000).
In rejecting this argument, the court held that the Social
Security Act and the Social Security Commissioner’s
Regulations adequately defined “region.” The court
explained that 20 C.F.R. § 416.966(a)(1) specifies that “it
does not matter whether work exists in the immediate area”
where a claimant lives, but that 20 C.F.R. § 416.966(b), on
the other hand, provides that “[i]solated jobs that exist only
in very limited numbers in relatively few locations outside of
the region where [a claimant lives] are not considered work
which exists in the national economy.” Because the court
found that the statute and regulation provided sufficient
direction to define “region,” the court declined to define
“region” as one of the Metropolitan and Micropolitan
Statistical Areas. As such, the court found that the State of
California was a “region” under § 1382c(a)(3)(B) and that,
therefore, the ALJ had not erred.
STANDARD OF REVIEW
The court reviews a district court’s judgment upholding
an ALJ’s denial of social security benefits de novo. See
Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).
However, the court reviews an ALJ’s factual findings for
substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence is ‘more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). The
court must consider the record as a whole and weigh “both
the evidence that supports and the evidence that detracts from
8 GUTIERREZ V. COMM’R OF SOC. SEC.
the ALJ’s” factual conclusions. Mayes v. Massanari,
276 F.3d 453, 459 (9th Cir. 2001). “If the evidence can
reasonably support either affirming or reversing,” the
reviewing court “may not substitute its judgment” for that of
the Commissioner. Reddick v. Chater, 157 F.3d 715, 720–21
(9th Cir. 1996).
Nevertheless, a decision supported by substantial
evidence will still be set aside if the ALJ did not apply proper
legal standards. Bray v. Comm’r of Soc. Sec. Admin.,
554 F.3d 1219, 1222 (9th Cir. 2009); see also Benton v.
Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003) (requiring that
a Commissioner’s decision be free of “legal error”).
DISCUSSION1
Under the Social Security Act, a claimant is considered
“disabled” if he is “unable to engage in substantial gainful
activity due to a medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
However, that statutory definition of disability is qualified as
follows:
[A]n individual shall be determined to be
under a disability only if his physical or
mental impairment or impairments are of such
1
We decline to adopt both parties’ suggestion that Chevron deference
applies to this issue. Robinson Fruit Ranch, Inc. v. United States,
147 F.3d 798, 802 (9th Cir. 1998) (declining to give deference to the
ALJ’s interpretation of the statute under Chevron because there was no
consistent agency interpretation of the statute).
GUTIERREZ V. COMM’R OF SOC. SEC. 9
severity that he is not only unable to do his
previous work but cannot, 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.
Id. § 1382c(a)(3)(B) (emphasis added). That same section
defines “in the national economy”:
For purposes of the preceding sentence (with
respect to any individual), “work which exists
in the national economy” means work which
exists in significant numbers either in the
region where such individual lives or in
several regions of the country.
Id. (emphasis added). The accompanying regulations
reiterate that “work exists in the national economy when it
exists in significant numbers either in the region where [the
individual lives] or in several other regions of the country.”
20 C.F.R. § 416.966(a).
10 GUTIERREZ V. COMM’R OF SOC. SEC.
1. The ALJ did not err by defining “region” for purposes
of § 1382c(a)(3)(B) as the State of California, and
2,500 jobs in California constitutes a significant
number of jobs in the region.
Section 1382c(a)(3)(B) defines, “work in the national
economy” in the disjunctive. In Beltran v. Astrue, this court
noted that
[t]he statute in question indicates that the
“significant number of jobs” can be either
regional jobs (the region where a claimant
resides) or in several regions of the country
(national jobs). . . .
If we find either of the two numbers
“significant,” then we must uphold the ALJ’s
decision.
700 F.3d 386, 389–90 (9th Cir. 2012). Gutierrez argues (1)
that the ALJ erred in the first part of this disjunctive test by
equating the State of California with “the region where such
individual lives,” and (2) that the ALJ erred by finding that
2,500 jobs qualifies as a significant number.
A. The Metropolitan or Micropolitan Statistical
Areas as a definition of “region.”
Gutierrez contends that we must interpret “the region
where such individual lives” according to the Metropolitan or
Micropolitan Statistical Areas (“MMSAs”) delineated by the
Office of Management and Budget (“OMB”) for use by the
United States Census Bureau. See Appendix 1.
GUTIERREZ V. COMM’R OF SOC. SEC. 11
MMSAs are defined by population: “A metro area
contains a core urban area of 50,000 or more population, and
a micro area contains an urban core of at least 10,000 (but
less than 50,000) population.” United States Census Bureau,
Metropolitan and Micropolitan Statistical Areas Main,
http://www.census.gov/population/metro. Each metro or
micro area “includes the counties containing the core urban
area, as well as any adjacent counties that have a high degree
of social and economic integration (as measured by
commuting to work) with the urban core.” Id. The OMB
establishes and maintains the delineations of the MMSAs
“solely for statistical purposes.” Office of Mgmt. & Budget,
Exec. Office of the President, OMB Bulletin No. 13-01,
Revised Delineations of Metropolitan Statistical Areas,
Micropolitan Statistical Areas, and Combined Statistical
Areas, and Guidance on Uses of the Delineations of Those
Areas at 3 (2013), available at http://www.whitehouse.gov/
sites/default/files/omb/bulletins/2013/b-13-01.pdf. The
classification of the MMSAs is “intended to produce
nationally consistent delineations for collecting, tabulating,
and publishing Federal statistics for a set of geographic
areas.” Id.
Gutierrez asks us to find that Bakersfield-Delano, one of
California’s twenty-six metropolitan statistical areas with a
population of 839,000, qualifies as his “region” for purposes
of § 1382c(a)(3)(B). At first blush, Gutierrez’s proposal may
seem fitting, given that the regulations provide:
When [the Commissioner] determine[s] that
unskilled, sedentary, light, and medium jobs
exist in the national economy (in significant
numbers either in the region where [a
claimant] live[s] or in several regions of the
12 GUTIERREZ V. COMM’R OF SOC. SEC.
country), [the Commissioner] will take
administrative notice of reliable job
information from various governmental and
other publications. . . . [including] Census
Reports, also published by the Bureau of the
Census.
20 C.F.R. § 416.966(d)(3).
However, Gutierrez’s proposed definition of “region”
suffers from two irremediable flaws. First, the MMSAs do
not account for many areas around the country. The Deputy
Director of Management for the OMB acknowledged that the
MMSAs do not account for 1,335 counties in the United
States. Office of Mgmt. & Budget, Exec. Office of the
President, supra, at 6 (“Of 3,143 counties in the United
States, 1,167 will be in the 381 metropolitan statistical areas
in the United States, and 641 counties will be in the 536
micropolitan statistical areas (1,335 counties are outside the
classification).”). Moreover, the “general concept of a
Metropolitan Statistical Area or a Micropolitan Statistical
Area is that of an area containing a recognized population
nucleus and adjacent communities that have a high degree of
integration with that nucleus.” Standards for Defining
Metropolitan and Micropolitan Statistical Areas, 65 Fed. Reg.
82228-01, 82229 (proposed Dec. 27, 2000) (emphasis added).
Because the MMSAs do not account for areas without a high
degree of integration with a recognized population nucleus,
superimposing the MMSAs onto the concept of “region”
under § 1382c(a)(3)(B) could distort future disability benefit
claims for claimants who do not live within the OMB’s
circumscribed metropolitan or micropolitan areas.
GUTIERREZ V. COMM’R OF SOC. SEC. 13
Second, the OMB Deputy Director also explicitly
cautioned that the MMSA delineations “should not be used to
develop and implement [f]ederal, state, and local
nonstatistical programs and policies without full
consideration of the effects of using these delineations for
such purposes.” Office of Mgmt. & Budget, Exec. Office of
the President, supra, at 3. The Deputy Director added that
“[t]hese areas should not serve as a general-purpose
geographic framework for nonstatistical activities . . . .” Id.
(emphasis added). The task of fully considering the effects
of the MMSAs for a nonstatistical program like that of the
Social Security Administration should fall to Congress – not
to this court.
Accordingly, because the MMSAs do not account for
many areas within the country and are not appropriate for
nonstatistical programs like the Social Security
Administration, we reject Gutierrez’s proposed definition of
“region” as one of the MMSAs.
B. “Region” does not mean “immediate area.”
Gutierrez next asserts that the statutory reference to the
region where a claimant lives means in the immediate area in
which he resides. Gutierrez also argues that the identification
of a region for the purposes of work activity must be limited
by “a reasonable commuting distance” because “[i]t would
constitute an unreasonable expectation that Mr. Gutierrez
would drive from Bakersfield to San Francisco for an
unskilled job that pays minimum wage.” In determining what
would be a “reasonable commuting distance,” Gutierrez
would have the Commissioner consider how much an
applicant would be paid once he arrived at the job site, and
presumably also the cost of commuting.
14 GUTIERREZ V. COMM’R OF SOC. SEC.
In support of his “immediate area” argument, which is not
without some superficial appeal, Gutierrez quotes 20 C.F.R.
§ 416.966(a)(1), selectively focusing on the word
“immediate” in an explanatory parenthetical in his brief
which reads: “‘It does not matter whether –’ ‘Work exists in
the immediate area in which you live.’” However, the
entirety of 20 C.F.R. § 416.966(a) states:
§ 416.966 Work which exists in the national
economy.
(a) General. We consider that work exists
in the national economy when it exists in
significant numbers either in the region
where you live or in several other regions
of the country. It does not matter whether
–
(1) Work exists in the immediate area
in which you live;
(2) A specific job vacancy exists for
you; or
(3) You would be hired if you applied
for work.
20 C.F.R. § 416.966(a) (emphases added). As the language
of § 416.966(a)(1) thus demonstrates, the term “region” is not
equivalent to a claimant’s immediate area. “Region” is not
synonymous with “immediate area.”
Likewise, 20 C.F.R. § 416.966(c) reiterates that whether
work exists in the claimant’s “local area” is irrelevant for
GUTIERREZ V. COMM’R OF SOC. SEC. 15
purposes of determining whether work exists in the national
economy. That section reads:
(c) Inability to obtain work. We will
determine that you are not disabled if your
residual functional capacity and vocational
abilities make it possible for you to do work
which exists in the national economy, but you
remain unemployed because of –
(1) Your inability to get work;
(2) Lack of work in your local area;
(3) The hiring practices of employers;
(4) Technological changes in the industry
in which you have worked;
(5) Cyclical economic conditions;
(6) No job openings for you;
(7) You would not actually be hired to do
work you could otherwise do, or;
(8) You do not wish to do a particular type
of work.
20 C.F.R. § 416.966(c) (emphasis added). Again, the
regulations flowing from the statute are clear that “region” is
not limited by statute or by regulations to the local or
immediate area of the claimant.
16 GUTIERREZ V. COMM’R OF SOC. SEC.
Furthermore, we have held that the relevant job area for
purposes of the statutory definition of “disability” need not be
the claimant’s local area. See Torske v. Richardson, 484 F.2d
59, 60 (9th Cir. 1973) (per curiam). In Torske, the district
court had held that the inclusion of the Portland area (70
miles away from the claimant’s home) as a labor market
available to the claimant was unreasonable. Id. Although we
did not define “region,” we rejected the district court’s
holding, explaining that “the job area is not confined to the
claimant’s locality.” Id. Other courts agree. See, e.g.,
Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009)
(holding that the relevant “region” for purposes of the Social
Security Act is not limited to a claimant’s local area);
Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999) (“The
Commissioner is not required to show that job opportunities
exist within the local area.”). If Gutierrez’s argument were
accepted, the Secretary could virtually never carry his burden
when a claimant lives in a sparsely populated rural area.
Such a claimant could always argue, regardless of the
absolute number of jobs found by the vocational expert, that
the vast majority of jobs exist in the metropolitan centers and
are unavailable to remote rural dwellers. Such a rule might
well lead to the equivalent of “forum shopping” by claimants.
In sum, the regulations and our holding in Torske
preclude Gutierrez’s facially appealing argument that
“region” should be equated with his local area or an area
within a reasonable commuting distance.
C. “Region” may include an entire state.
Gutierrez next argues that the ALJ erred in this case by
deeming the State of California to be the relevant “region”
under § 1382c(a)(3)(B). He says, “Region does not mean a
GUTIERREZ V. COMM’R OF SOC. SEC. 17
state that is 770 miles north to south and 250 miles east to
west.” Like most of his contentions, this, too, has some facial
appeal, but it fails under statutory scrutiny.
Courts have used a claimant’s state as a proxy for
“region” under § 1382c(a)(3)(B). In Pollice v. Sec’y of
Health & Human Servs., No. 87-1609, 1988 WL 28536, at *1
(6th Cir. April 1, 1988), the Sixth Circuit expressly held that
an entire state can constitute a “region.” The court explained:
We believe it is clear that the term “region” is
flexible and that the Secretary did not err in
considering the number of jobs existing in the
entire State of Michigan. . . . The fact that the
statute speaks in terms of work existing in the
national economy and does not restrict the
Secretary to consideration of work that exists
in the immediate area of a claimant’s
residence gives the Secretary sufficient
latitude to treat an entire state as the region
to be considered.
Id. (emphasis added). As such, the Sixth Circuit upheld the
Secretary’s finding that 3,600 jobs in the entire state of
Michigan was a significant number of jobs in the region. Id.
Other courts have upheld an ALJ’s finding that the
relevant region was a claimant’s state. See, e.g., Jones v.
Chater, 72 F.3d 81, 82 (8th Cir. 1995) (Iowa); Trimiar v.
Sullivan, 966 F.2d at 1326, 1330–32 (10th Cir. 1992)
(Oklahoma).
We have upheld an ALJ’s finding that the relevant region
was a claimant’s state. We found that substantial evidence
18 GUTIERREZ V. COMM’R OF SOC. SEC.
supported the ALJ’s finding that the claimant was not
disabled because the vocational expert testified that she
“could perform one of 622,000 jobs in the national economy
and 1,300 jobs in Oregon.” Thomas v. Barnhart, 278 F.3d
947, 960–61 (9th Cir. 2002) (emphasis added).
We discern no principled difference between decisions
upholding state-wide job numbers and decisions upholding
job numbers for areas within a state. Rather, any difference
can be attributed to the vocational expert’s testimony. As the
Seventh Circuit commented:
[I]n our experience, and, it seems, in that of
the other circuits as well, the vocational
experts who testify in social security disability
cases concerning the availability of jobs that
the applicant has the physical ability to
perform almost always confine their
testimony to indicating the number of such
jobs that exist in the applicant’s state, or an
even smaller area.
Barrett, 368 F.3d at 692.
Here, we note that Gutierrez did not challenge the VE’s
testimony regarding the number of jobs available to him in
California. Moreover, he did not explore with the VE where
those jobs were in relation to his domicile in Bakersfield.
Thus, as the district court observed, “there is nothing here to
suggest that the positions of assembler and almond blancher,
especially where Plaintiff resides within the agricultural San
Joaquin Valley, were ‘isolated jobs that existed only in very
limited numbers in relatively few locations’ outside of the
region in which plaintiff resides.”
GUTIERREZ V. COMM’R OF SOC. SEC. 19
In summary, we conclude on this record that the State of
California qualifies as a “region” for purposes of
§ 1382c(a)(3)(B). As such, the ALJ in the instant case had
“sufficient latitude to treat an entire state as the region to be
considered,” Pollice, 1988 WL 28536, at *1, and thus did not
commit legal error.
In effect, Gutierrez asks us to re-write the Social Security
Act and the Commissioner’s implementing regulations. We
decline the invitation. See Sorenson v. Weinberger, 514 F.2d
1112, 1118–19 (9th Cir. 1975) (explaining that the courts
cannot rewrite definitions laid down by Congress).
D. 2,500 jobs constitute a significant amount of work
in the region of California.
After defining the relevant region for purposes of
§ 1382c(a)(3)(B), we next consider whether 2,500 jobs in
California constitutes “significant work.”
Our precedent defers to an ALJ’s supported finding that
a particular number of jobs in the claimant’s region was
significant. See Valentine v. Comm’r Soc. Sec. Admin.,
574 F.3d 685, 690 (9th Cir. 2009) (holding that a reviewing
court must uphold the ALJ’s decision if it is supported by
“substantial evidence,” which “is a highly deferential
standard of review”); Martinez v. Heckler, 807 F.2d 771, 775
(9th Cir. 1986) (“[W]hether there [is] a significant number of
jobs a claimant is able to perform with his limitations is a
question of fact to be determined by a judicial officer.”
(emphasis added)).
Moreover, we have never set out a bright-line rule for
what constitutes a “significant number” of jobs.
20 GUTIERREZ V. COMM’R OF SOC. SEC.
Nevertheless, we have upheld a number of jobs less than
2,500 in a handful of cases, and in those cases, the regions
were smaller than the State of California. See Thomas,
278 F.3d at 960 (upholding the ALJ’s finding that 1,300 jobs
in Oregon constituted significant work); Meanel v. Apfel,
172 F.3d 1111, 1115 (9th Cir.1999) (1,000 to 1,500 jobs in
the local area alone was significant); Moncada v. Chater,
60 F.3d 521, 524 (9th Cir. 1995) (per curiam) (2,300 jobs in
San Diego County was significant).
However, in Barker, we relied on decisions from district
courts within this circuit finding several hundred jobs
“significant.” See 882 F.2d at 1478–79. Barker also relied
on decisions from other circuits. See id. at 1478 (citing Hall
v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988) (finding that
1,350 jobs in the local economy constituted a significant
number); Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir.
1988) (holding that as few as 500 jobs “in the region in which
Jenkins live[d]” was a significant number)).
Looking for guidance to decisions from our sister circuit
courts, we conclude that a sampling of what constitutes
“significant work” reveals that the ALJ’s finding of 2,500
jobs in California satisfies the statutory standard. See, e.g.,
Johnson v. Chater, 108 F.3d 178, 180–81 (8th Cir. 1997)
(upholding the ALJ’s finding that 200 jobs in Iowa
constituted significant work); Trimiar, 966 F.2d at 1330–32
(650 to 900 jobs in Oklahoma constituted significant work);
Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) (1,600
jobs statewide in Georgia was significant).
Thus, we affirm the ALJ’s decision that 2,500 jobs
constituted significant work in the region of California.
GUTIERREZ V. COMM’R OF SOC. SEC. 21
2. A significant number of jobs existed in several regions
of the country
As explained above, “work which exists in the national
economy” can be satisfied by “work which exists in
significant numbers either in the region where such individual
lives or in several regions of the country.” 42 U.S.C.
§ 1382c(a)(3)(B) (emphasis added); Beltran, 700 F.3d at
389–90. As such, even if we were to conclude that California
is not the relevant “region” or that 2,500 jobs is not “work
which exists in significant numbers,” we must then consider
whether substantial evidence supports the ALJ’s decision that
25,000 national jobs constituted “work which exist[ed] in
significant numbers . . . in several regions of the country.”
42 U.S.C. § 1382c(a)(3)(B); see also Allen, 816 F.2d at 602
(holding that even if credible evidence indicated a lack of a
significant number of jobs in a particular geographic area, a
“failure to disprove the existence of . . . jobs on a national
scale would leave the ALJ’s [step-five] finding intact”).
The ALJ found that 25,000 national jobs constituted
“work which exists in significant numbers . . . in several
regions of the country.” Assuming without deciding that
Gutierrez properly has raised an issue regarding this finding,
we affirm the ALJ’s decision, because 25,000 jobs meets the
statutory standard.
We assess the 25,000 nationwide figure in the context of
“several regions of the country.” See Beltran, 700 F.3d at
390 (holding that the national job figure cannot stand alone
and must be considered in light of the fact that it represents
jobs in several regions). At the same time, we also assess
whether the national jobs are significant in light of 20 C.F.R.
§ 416.966(b), which states that “[i]solated jobs that exist only
22 GUTIERREZ V. COMM’R OF SOC. SEC.
in very limited numbers in relatively few locations outside of
the region where [a claimant] live[s] are not considered work
which exists in the national economy.”
Under our current case law, the ALJ’s finding that 25,000
national jobs is sufficient presents a close call. See Moncada,
60 F.3d at 524 (64,000 nationwide jobs significant); Thomas,
278 F.3d at 960 (622,000 nationwide jobs significant); Moore
v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (125,000
nationwide jobs significant); see also Beltran, 700 F.3d at
390 (1,680 nationwide jobs insignificant). Nevertheless,
while these decisions involved higher numbers of nationwide
jobs, none precluded the possibility that 25,000 jobs
constitutes a significant number. And one other circuit court
has found fewer than 25,000 national jobs to be significant.
See Johnson, 108 F.3d at 180 (10,000 national jobs
significant).
As 20 C.F.R. § 416.996(b) explains, “[i]solated jobs that
exist only in very limited numbers in relatively few locations
outside of the region where [a claimant] live[s] are not
considered work which exists in the national economy.” A
finding of 25,000 jobs likely does not fall into the category of
“isolated jobs” existing in “very limited numbers.”
Accordingly, the ALJ’s national job finding satisfies
§ 1382c(a)(3)(B), because it represents a significant number
of jobs in several regions of the country.
CONCLUSION
The ALJ did not err in concluding that 2,500 jobs in the
State of California constituted a significant number of jobs in
the region where Gutierrez lived and that 25,000 jobs also
GUTIERREZ V. COMM’R OF SOC. SEC. 23
signifies a significant number of jobs in several regions of the
country.
CODA
We can conceive of a factual record which might
demonstrate that using an entire state as large as California as
a “region” – or for that matter Alaska or Montana – would be
problematic. For example, if a claimant lived in Weed,
California, and the only available jobs in question were some
700 miles away in San Diego, California, one would not
reasonably expect a claimant with severe enough impairments
to get to step 5 either to commute or to relocate. It is possible
that the Social Security Administration’s current definition of
“region” would permit such a potentially unreasonable result.
However, that is not the case here. Moreover, policy
decisions such as those implicated by Gutierrez’s arguments
are best addressed to Congress and the Social Security
Administration, not to us.
AFFIRMED.
24 GUTIERREZ V. COMM’R OF SOC. SEC.
Appendix 1
Maps of Metropolitan and Micropolitan Statistical Areas,
United States Census Bureau (February 2013),
http://www.census.gov/population/metro/files/
metro_micro_Feb2013.pdf