Jennie Beltran v. Michael Astrue ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIE P. BELTRAN , No. 09-56255
Plaintiff-Appellant,
D.C. No.
v. 2:08-cv-02386-
RGK-E
MICHAEL J. ASTRUE , Commissioner
of Social Security Administration, ORDER AND
Defendant-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted October 8, 2010*
Pasadena, California
Filed May 2, 2012
Amended November 14, 2012
Before: Harry Pregerson, Dorothy W. Nelson, and
Sandra S. Ikuta, Circuit Judges.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 BELTRAN V . ASTRUE
Order;
Opinion by Judge Pregerson;
Dissent by Judge Ikuta
SUMMARY**
The panel amended the opinion and dissent filed on May
2, 2012, reversing the district court’s grant of summary
judgment to the Commissioner of Social Security and the
Commissioner’s denial of the claimant’s applications for
Social Security Disability Insurance benefits and Social
Security Income benefits.
The administrative law judge concluded that the 135 jobs
regionally and 1,680 jobs nationally for surveillance system
monitors was a “significant number” of jobs that the claimant
could do, despite her physical and mental limitations. The
panel held that the ALJ’s decision was not supported by
substantial evidence based on the rarity of the surveillance
system monitor jobs, regionally and nationally, and
considering claimant’s physical and mental limitations.
Specifically, the panel held that neither the 135 regional jobs
nor the 1,680 national jobs constituted a “significant number
of jobs” under 42 U.S.C. § 423(d)(2)(A).
In a published order, a majority of the panel denied the
petition for panel rehearing, and held that future petitions for
rehearing will not be entertained.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BELTRAN V . ASTRUE 3
Judge Ikuta dissented. Judge Ikuta stated that the majority
usurped the ALJ’s role as a factfinder. Judge Ikuta further
stated that the majority improperly rejected the ALJ’s
conclusion that the claimant’s physical limitations would not
prevent her from working, and improperly rejected the ALJ’s
conclusion that a significant number of suitable jobs exist in
the regional and national economy, a conclusion supported by
substantial evidence.
COUNSEL
Lawrence David Rohlfing, Law Offices of Lawrence D.
Rohlfing, Santa Fe Springs, California, for the plaintiff-
appellant.
Jean Marie Turk, Social Security Administration, San
Francisco, California, for the defendant-appellee.
ORDER
A majority of the panel has voted to deny the petition for
panel rehearing and to not entertain future petitions for
rehearing. The opinion and dissent filed on May 2, 2012 are
hereby amended and attached hereto. With these
amendments, the petition for panel rehearing is DENIED and
future petitions for rehearing will not be entertained.
IT IS SO ORDERED.
4 BELTRAN V . ASTRUE
OPINION
PREGERSON, Circuit Judge:
Jennie Beltran appeals the district court’s grant of
summary judgment to the Commissioner of Social Security in
its review of the Commissioner’s denial of benefits. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
BACKGROUND
Jennie Beltran is a fifty-six-year-old woman suffering
from degenerative joint disease of the left knee and wrist,
bilateral carpal tunnel syndrome, obesity, heel spurs,
degenerative disc disease of the lumbar spine, status post-
surgical correction of a fractured right distal tibia, depression,
and alcohol abuse. She filed applications for both Social
Security Disability Insurance (“SSDI”) benefits and Social
Security Income (“SSI”) benefits under Titles II and XVI of
the Social Security Act on March 29, 2002, and again on
November 20, 2002. In her applications, Beltran alleged a
disability onset date of June 30, 2000. The Commissioner
denied the request initially and upon reconsideration. Beltran
appealed to an administrative law judge (“ALJ”) who
affirmed the denial of her claim, holding that Beltran did not
suffer from a disability as defined under the Social Security
Act. Beltran appealed the ALJ’s decision, and her case was
remanded to the ALJ.
During a second hearing on December 13, 2007, the ALJ
concluded that Beltran had met her burden to establish that
she could not perform any of her past relevant work due to her
physical and mental limitations. The burden then shifted to
BELTRAN V . ASTRUE 5
the agency to show that Beltran would nevertheless be able to
perform other work. Thus, the ALJ asked a vocational expert
a series of hypothetical questions given Beltran’s age,
education, work experience, and residual functional capacity.
The vocational expert testified that, but for Beltran’s ongoing
alcohol abuse, she would have been able to work as a
surveillance system monitor at all times prior to January 9,
2006. The vocational expert testified that there were 135
regional and 1,680 national surveillance system monitor jobs
available.
The ALJ denied Beltran’s application for Social Security
Disability Insurance benefits and partially denied her
application for Social Security Income benefits. The ALJ
concluded that there existed a “significant number” of jobs
that Beltran could perform prior to January 9, 2006, and
therefore found that Beltran was not “disabled” within the
meaning of the Social Security Act prior to that date. The
ALJ, however, found that Beltran did become disabled on
January 9, 2006—her fiftieth birthday—because of the
deterioration in her medical condition caused by her
alcoholism, and because she was now classified as “an
individual closely approaching advanced age.”
Beltran appealed the ALJ’s decision to the district court.
The district court granted summary judgment to the
Commissioner on November 18, 2008, affirming the ALJ’s
decision to deny disability benefits to Beltran from March 12,
2002, until January 9, 2006.
6 BELTRAN V . ASTRUE
STANDARD OF REVIEW
We review the district court’s granting of summary
judgment de novo. Moisa v. Barnhart, 367 F.3d 882, 885 (9th
Cir. 2004). We may reverse the Commissioner’s decision
only if it was not supported by substantial evidence or was
based on legal error. Benton v. Barnhart, 331 F.3d 1030,
1035 (9th Cir. 2003).
DISCUSSION
Beltran alleges that the district court was wrong to grant
summary judgment to the Commissioner because the
Commissioner erred in concluding that there existed a
“significant number” of jobs in the regional and national
economy that Beltran could do. Because this is Beltran’s only
contention, we limit our analysis to answering it.
According to the Social Security Act,
An individual shall be determined to be under
a disability 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, considering his age,
education, and work experience, engage in any
other kind of substantial gainful work which
exists 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
BELTRAN V . ASTRUE 7
region where such individual lives or in
several regions of the country.
42 U.S.C. § 423(d)(2)(A); id. § 1382c(a)(3)(B) (emphasis
added). The burden of establishing that there exists other
work in “significant numbers” lies with the Commissioner.
Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999).
The ALJ concluded that 135 jobs regionally and 1,680
jobs nationally is a “significant number” of jobs that Jennie
Beltran could do, despite her physical and mental limitations.
As the ALJ established in her decision, Jennie Beltran
suffered from a degenerative joint disease of the left knee and
wrists, bilateral carpal tunnel syndrome, obesity, heel spurs,
degenerative disc disease of the lumbar spine, post-surgical
correction of a fractured right distal tibia, depression and
alcohol abuse. All of these limitations existed during the
period in question, from March 12, 2002, until January 9,
2006. We consider whether, in light of her limitations, 135
jobs in Jennie Beltran’s region, or 1,680 jobs nationally,
constitute a “significant number” of jobs.
In Walker v. Mathews, 546 F.2d 814, 820 (9th Cir. 1976),
we held that an ALJ erred in finding a significant number of
jobs where the jobs were “very rare” or generally unavailable
to the claimant due to his limitations. This is precisely the
situation in Beltran’s case. The ALJ found that there existed
only 135 jobs regionally or 1,680 jobs nationally that Jennie
Beltran could perform. Although, in Walker, we never
established what number of jobs qualifies as “very rare” or
generally unavailable, a comparison to other cases shows that
this case fits comfortably under Walker’s purview.
8 BELTRAN V . ASTRUE
We have never set out a bright-line rule for what
constitutes a “significant number” of jobs. However, a
comparison to other cases is instructive. For example, in
Barker v. Secretary of Health & Human Services, 882 F.2d
1474, 1479 (9th Cir. 1989), we held that 1,266 jobs regionally
is a significant number of jobs. In Jennie Beltran’s case, 135
jobs regionally is about 11% of the 1,266 jobs found
“significant” in Barker; 1,266 jobs regionally is also slightly
lower than the 1,680 jobs nationally available to Beltran. In
Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1987)
(amended), we stated that 3,750 to 4,250 jobs (or 2 to 4% of
the regional jobs available to Beltran) in the Greater
Metropolitan and Orange County area (the same region
Beltran lives in) was a significant number of jobs. See also
Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (1,300
jobs in Oregon region and 622,000 in the national economy);
Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)
(30,000 jobs in Los Angeles County area); Moncada v.
Chater, 60 F.3d 521, 524 (9th Cir. 1995) (2,300 jobs in San
Diego County and 64,000 jobs nationwide). In short, when
compared to other cases, 135 regional surveillance monitor
jobs qualifies as a “very rare” number.
The 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). 42 U.S.C. §§ 423(d)(2)(A). The
Commissioner argues that if substantial evidence supports
finding either of the two numbers “significant,” the ALJ’s
decision must be upheld. Id. The Commissioner, focusing
not on the 135 regional jobs, but on the 1,680 jobs found
nationally, argues that a “significant number” of jobs were
available to Jennie Beltran at a national level.
BELTRAN V . ASTRUE 9
If we find either of the two numbers “significant,” then
we must uphold the ALJ’s decision. 42 U.S.C.
§ 423(d)(2)(A). Having concluded that 135 regional jobs is
not a “significant number,” we turn to the 1,680 national jobs.
However, we cannot consider the 1,680 jobs as a stand-alone
figure; rather, as the statute states, we must consider this
number in light of the fact that it represents jobs across
“several regions.” Id. Although 1,680 jobs might seem a
“significant number” standing alone, distributing these jobs
between several regions across the nation shows that it is not
“significant” after all. If 135 jobs available in one of the
largest regions in the country is not a “significant number,”
then 1,680 jobs distributed over several regions cannot be a
“significant number,” either. We need not decide what the
floor for a “significant number” of jobs is in order to reach
this conclusion.
Furthermore, the district court’s finding that there existed
only 135 regional or 1,680 national surveillance system
monitor jobs was solely based on a vocational expert’s
testimony. Upon questioning by Beltran’s attorney, the same
vocational expert admitted that there are not many of these
jobs anymore. She further testified that she was not familiar
with the tri-county area of Southern California (the area where
Beltran resides) and that she was not aware of any available
surveillance system monitor positions in that area. The
vocational expert’s testimony further indicates that the job of
a surveillance system monitor was simply not available to
Jennie Beltran. As we found in Walker, a job that is rare or
generally unavailable to the claimant due to her limitations
cannot be held to exist in significant numbers. See Walker,
546 F.2d at 820.
10 BELTRAN V . ASTRUE
Congress has determined under 42 U.S.C. § 423(d)(2) that
what is essential is the existence of jobs. In deciding whether
a significant number of jobs exist in a region or in several
regions, an ALJ may not consider the hiring practices of
employers or whether a claimant actually could obtain work
if he or she applied. However, we must still consider
Beltran’s application for benefits in light of her own situation
to determine her ability to perform the job of surveillance
system monitor.
The ALJ established that Jennie Beltran could only stand
and walk for two hours of the day, but not do prolonged
walking; required an assistive device to walk; and could not
walk frequently on uneven terrain. In her application for
disability benefits, Beltran alleged that she was unable to take
a shower without someone close by in case she were to fall.
Beltran also alleged that she needed to rest frequently between
washing dishes or preparing food because she suffered from
back and foot pain. Even if Jennie Beltran were able to find
an open position, it is highly unlikely that a woman with her
physical and mental limitations—who was forty-nine years
old and possessed only a high school degree—would be able
to get to the job, let alone sufficiently perform as a
surveillance system monitor. In Walker, we stated that “[i]n
looking toward the pool of jobs existing in the national
economy, Congress did not intend to foreclose a claimant
from disability benefits on the basis of the existence of a few
isolated jobs.” Walker, 546 F.2d at 819. Considering all of
her limitations, it would be unconscionable to expect Beltran
to find even one of 135 jobs as a surveillance system monitor
in her region or one of 1,680 jobs scattered across several
regions. Doing so would achieve exactly what we attempted
to avoid in Walker: foreclose a deserving claimant from
BELTRAN V . ASTRUE 11
obtaining disability benefits on the basis of the existence of a
few isolated jobs.
In sum, based on the rarity of the surveillance system
monitor jobs, and considering Jennie Beltran’s physical and
mental limitations, we are compelled to find that the ALJ’s
decision is not supported by substantial evidence. Benton,
331 F.3d at 1035.
CONCLUSION
We REVERSE the district court’s grant of summary
judgment to the Commissioner of Social Security and
REMAND for further proceedings consistent with this
opinion.
IKUTA, Circuit Judge, dissenting:
By usurping the ALJ’s role as factfinder, the majority
makes two critical mistakes. First, it improperly rejects the
ALJ’s conclusion that Beltran’s physical limitations wouldn’t
prevent her from working. The majority forgets that Congress
gave the ALJ, not the courts, the responsibility of determining
“the most [Beltran] can still do despite [her] limitations,” 20
C.F.R. § 404.1545(a)(1); see also § 404.1546(c). Second, the
majority improperly rejects the ALJ’s conclusion that a
significant number of suitable jobs exist in the regional and
national economy, a conclusion supported by substantial
evidence. The majority replaces the substantial evidence
standard with its own rule: the ALJ’s conclusion cannot stand
because the majority thinks it is “unconscionable.” Maj. op.
at 10. I cannot agree with either of these improper decisions.
12 BELTRAN V . ASTRUE
1
The ALJ here quite reasonably determined that during the
time period at issue, Beltran was capable of performing a
limited range of unskilled, sedentary work. The ALJ correctly
relied on the vocational expert’s testimony regarding the
number of jobs that Beltran was capable of performing
despite her limitations. See Bayliss v. Barnhart, 427 F.3d
1211, 1217 (9th Cir. 2005); see also 20 C.F.R. § 404.1566(e).
But the majority insists it can do a better job. Overriding
the ALJ, the majority asserts that it would be
“unconscionable” to expect Beltran to find one of the
sedentary jobs identified by the vocational expert because “it
is highly unlikely that a woman with her physical and mental
limitations—who was forty-nine years old and possessed only
a high school degree—would be able to get to the job, let
alone sufficiently perform as a surveillance system monitor.”
Maj. op. at 10.
Every part of this conclusion is wrong. First, the majority
has no business speculating as to whether Beltran would be
able to get to the job or sufficiently perform at the job,
because the ALJ properly included all of Beltran’s mental and
physical limitations—including the limitations on her
mobility—in the hypothetical posed to the vocational expert.
The majority fails to acknowledge that many of the
limitations it attempts to highlight stem from Beltran’s severe
alcohol abuse, which cannot form the basis of a disability
determination. See 20 C.F.R. § 404.1535(b) (requiring the
ALJ to determine whether alcoholism is a contributing factor
material to the claimed disability by considering only the
limitations that would remain if the claimant stopped using
BELTRAN V . ASTRUE 13
alcohol); Parra v. Astrue, 481 F.3d 742, 746-47 (9th Cir.
2007) (holding that benefits must be denied if the limitations
that would remain if the claimant stopped using alcohol
would not be disabling). We are required to affirm the ALJ’s
determination of Beltran’s residual functional capacity so
long as it is supported by substantial evidence, see Bayliss,
427 F.3d at 1217. The majority ignores this requirement.
Second, the question whether Beltran could find — or
could be successful at — one of the jobs identified by the
vocational expert is entirely irrelevant. In determining
whether a claimant can perform work that exists in the
national economy, a court cannot consider “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);1 see also Martinez, 807 F.2d at 774–75
1
42 U.S.C. § 423(d)(2)(A) states in full:
An individual shall be determined to be under a disability 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, 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. For purposes of the preceding sentence (with
14 BELTRAN V . ASTRUE
(“Congress has explicitly determined that it is the existence of
jobs that is essential, and that an administrative law judge is
not required to consider the hiring practices of employers, or
whether a claimant could actually obtain work if he applied
for it.”). Because Beltran’s ability to find one of the jobs
identified by the vocational expert is not material under the
statutory scheme, the majority errs in giving any weight to its
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.
(emphasis added); see also 20 C.F.R. § 404.1566(c):
Inability to obtain work. W e 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;
(8) You do not wish to do a particular type of work.
BELTRAN V . ASTRUE 15
speculation that Beltran would be unable to actually find one
of the surveillance system monitor jobs. Maj. op. at 10.
2
Because of its cavalier attitude towards the ALJ’s
factfinding, the majority succumbs to an even more damaging
error: It improperly decides to override the ALJ’s
determination that the existence of 135 jobs in the regional
economy and 1,680 jobs in the national economy does not
meet the statutory requirement that there be “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. § 423(d)(2)(A). In making this error, the majority
fails to give the deference required by regulation and our
precedent to the adjudicative determination of the ALJ
regarding this essentially factual finding.2 Barker, 882 F.2d
at 1480 (“[W]hether there are 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.” (quoting
Martinez, 807 F.2d at 775)). Instead, the majority makes the
unsupported proclamation that 135 jobs in the region where
Beltran lives and 1,680 jobs in the national economy are not
“significant” numbers for purposes of the statute.
2
The majority misconstrues the record in concluding that the vocational
expert qualified her statement as to the number of jobs available in the
national economy. The expert’s impressionistic comments about the
general decline in surveillance system monitor jobs and her own personal
degree of familiarity with the tri-county area of southern California in no
way modified her unequivocal conclusion that there were 135 jobs in the
regional economy and 1,680 jobs in the national economy that Beltran was
capable of performing.
16 BELTRAN V . ASTRUE
The majority’s holding is unsupported by any precedent.
We have reversed an ALJ’s determination on the “significant
number of jobs” issue in exactly one case, Walker v.
Mathews, where the record revealed that there were only “a
few scattered jobs” in the nation the claimant was capable of
performing. 546 F.2d 814, 820 (9th Cir. 1976).3 Walker
correctly concluded that a vocational expert’s report that there
are only “a few scattered jobs” does not constitute substantial
evidence of a “significant number” of jobs existing in the
economy. Id. But 135 jobs in the regional economy and
1,680 jobs are not “a few scattered jobs.” Rather than Walker,
the controlling precedent here is Barker, which held that
1,266 regional jobs constituted a significant number because
it fell “within the parameters of ‘significant numbers’ found”
by other courts. Barker, 882 F.2d at 1479. In defining these
parameters, we relied in part on a district court case holding
that the 125 to 240 tune-up mechanic positions the claimant
was capable of performing “constitute[d] a ‘significant’
number as that term is used in the Secretary’s regulations.”
Uravitch v. Heckler, No. CIV-84-1619-PHX-PGR, 1986 WL
83443, at *1 (D. Ariz. May 2, 1986); Barker, 882 F.2d at1478–79 (relying on Uravitch). It necessarily follows that
135 jobs in the regional economy is also a significant number
of jobs, as it is greater than the lower parameter set by this
court in Barker. Barker, 882 F.2d at 1478–79.
We must uphold the ALJ’s decision if it is supported by
substantial evidence, which “is a highly deferential standard
of review.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
3Each of the other cases cited by the majority merely affirmed as a
matter of course the ALJ’s factual determination that the number of jobs
identified by the vocational expert was significant.
BELTRAN V . ASTRUE 17
685, 690 (9th Cir. 2009). Here, the ALJ’s determination that
the number of jobs identified by the vocational expert was
significant is supported by substantial evidence, and
consistent with our precedent. By holding otherwise, the
majority not only elbows the ALJ out of her proper role, but
also turns its back on the decisions of other circuits. See, e.g.,
Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009) (noting
that “[a]s few as 174 jobs has been held to be significant”
(citing Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)));
Johnson v. Chater, 108 F.3d 178, 180 & n.3 (8th Cir. 1997)
(holding that 200 jobs in the state was a significant number);
Scott v. Shalala, 43 F.3d 1483 (10th Cir. Dec. 21, 1994)
(unpublished table decision) (holding that 195 jobs in the
state was a significant number); Craigie v. Bowen, 835 F.2d
56, 58 (3d Cir. 1987) (holding that the existence of 200 jobs
in the regional economy was a “clear indication” that other
substantial gainful work existed in the national economy).
3
In reviewing an administrative agency’s decision we must
take care to stay within the role assigned by Congress. The
majority here exceeded its authority in deciding “the most
[Beltran] can still do despite [her] limitations,” 20 C.F.R.
§ 404.1545(a)(1), and in deciding that 1,680 jobs in the
national economy is not “significant.” Because the majority
should defer to the ALJ’s clearly reasonable conclusions
rather than tossing them out to ensure that its view of
Beltran’s abilities prevails, I respectfully dissent.