Jose Jaquez v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE RAUL JAQUEZ No. 19-56235
Plaintiff-Appellant,
D.C. No.
v. 3:18-cv-00536-GPC-BGS
ANDREW M. SAUL, COMMISSIONER
OF SOCIAL SECURITY, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted March 3, 2021
Pasadena, California
Before: GRABER, MILLER, and LEE, Circuit Judges.
Jose Jaquez asks this court to reverse the Social Security Commissioner’s
denial of disability and Supplemental Social Security Income benefits. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
The Administrative Law Judge (“ALJ”) relied on the testimony of a vocational
expert (“VE”) in determining that Jaquez could find substantial gainful employment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
as a counter clerk or usher. The district court adopted the magistrate judge’s
recommendation to deny Jaquez’s appeal, finding that substantial evidence supports
the ALJ’s decision. On appeal, the Commissioner concedes that the ALJ erred about
the counter clerk position but maintains that substantial evidence supports its
determinations about the usher occupation.
We review an ALJ’s factual findings for “substantial evidence.” Biestek v.
Berryhill, 139 S.Ct. 1148, 1153 (2019); 42 U.S.C. § 405(g). Given the
Commissioner’s concession on the counter clerk position, we must decide only
whether substantial evidence supports the ALJ’s finding that Jaquez could work as
an usher. We conclude that it does not.
The VE testified that there were 90,200 available usher positions in the national
economy. But Jaquez submitted evidence suggesting that 90% of ushers work part-
time. The agency’s Program Operations Manual System in effect at the time of
Jaquez’s hearing required a claimant to earn at least $1130 per month to engage in
substantial gainful employment. POMS DI 10501.015, tbl. 2 (calendar year 2016).
The non-binding manual, in conjunction with Jaquez’s evidence, suggests that there
may not be a significant number of usher jobs in the national economy constituting
substantial gainful employment. Specifically, Jaquez’s brief before the Appeals
Council stated that the median pay for ushers was $9.58 per hour. Consequently,
Jaquez would need to work roughly 29.49 hours per week to meet the manual’s
2
threshold. The record does not reveal what percentage of the usher jobs identified
by the VE are available for at least 29.49 hours per week. All we know is that 10%
of ushers, (or 9,020 ushers) work at least forty hours per week.
We are not positioned to engage in fact-finding in a Social Security claim. See
Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (recognizing that federal courts
“are not triers of fact”).1 Instead, that responsibility rests with the ALJ, who did not
consider this evidence or argument. Although ALJs are not required to develop the
record in anticipation of any conflict, they must nevertheless base their decisions on
substantial evidence. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 n.6 (9th Cir.
2018). Given the ambiguity about the availability of substantial gainful employment
as an usher, we reverse and remand the case for further proceedings.2
REVERSED and REMANDED.
1
Because it is now moot, we also deny Jaquez’s motion to remand. Dkt. 27.
2
The Commissioner argues that Jaquez forfeited or waived this issue because he did
not present this evidence before the ALJ. But it appears that the Appeals Council
considered this evidence in denying Jaquez’s appeal. Jaquez thus neither waived nor
forfeited this challenge. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157(9th Cir. 2012).
3