Jennie Beltran v. Michael Astrue

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 at

1478–79 (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

3

Each 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.