Carlos Gutierrez v. Commissioner of Social Securit

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