Beltran v. Astrue

Opinion by Judge PREGERSON; Dissent by Judge IKUTA.

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.

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, bilater *388 al 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 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.

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 un *389 able 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 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.

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 *390 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.

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 1,680national 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 1,680national 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 tricounty 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.

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 no‘t 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 1,680jobs scattered across several regions. *391 Doing so would achieve exactly what we attempted to avoid in Walker: foreclose a deserving claimant from 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.