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-
MICHAEL J. ASTRUE, Commissioner RGK-E
of Social Security Administration,
OPINION
Defendant-Appellee.
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
Before: Harry Pregerson, Dorothy W. Nelson, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Pregerson;
Dissent by Judge Ikuta
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
4615
BELTRAN v. ASTRUE 4617
COUNSEL
Lawrence David Rohlfing, Law Offices of Lawrence D. Rohl-
fing, Santa Fe Springs, California, for the plaintiff-appellant.
4618 BELTRAN v. ASTRUE
Jean Marie Turk, Social Security Administration, San Fran-
cisco, California, for the defendant-appellee.
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 jurisdic-
tion 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 administra-
tive 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
BELTRAN v. ASTRUE 4619
perform other work. Thus, the ALJ asked a vocational expert
a series of hypothetical questions given Beltran’s age, educa-
tion, 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 surveil-
lance 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 applica-
tion 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 med-
ical 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 Commis-
sioner 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 judg-
ment 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).
4620 BELTRAN v. ASTRUE
DISCUSSION
Beltran alleges that the district court was wrong to grant
summary judgment to the Commissioner because the Com-
missioner 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.
[1] According to the Social Security Act,
An individual shall be determined to be under a dis-
ability 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, consider-
ing 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 individ-
ual), “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 Bel-
tran 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, degener-
ative 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,
BELTRAN v. ASTRUE 4621
from March 12, 2002, until January 9, 2006. We consider
whether, in light of her limitations, 135 jobs in Jennie Bel-
tran’s region, or 1,680 jobs nationally, constitute a “signifi-
cant number” of jobs.
[2] In Walker v. Mathews, 546 F.2d 814, 820 (9th Cir.
1976), we held that an ALJ erred in finding a significant num-
ber of jobs where the jobs were “very rare” or generally
unavailable to the claimant due to his limitations. This is pre-
cisely 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.
[3] We have never set out a bright-line rule for what con-
stitutes a “significant number” of jobs. However, a compari-
son 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 signifi-
cant 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 signifi-
cant 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.
4622 BELTRAN v. ASTRUE
[4] 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 Commis-
sioner 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.
[5] 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 num-
ber 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 sev-
eral 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 dis-
tributed over several regions cannot be a “significant num-
ber,” either. We need not decide what the floor for a
“significant number” of jobs is in order to reach this conclu-
sion.
[6] Furthermore, the district court’s finding that there
existed only 135 regional or 1,680 national surveillance sys-
tem 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
BELTRAN v. ASTRUE 4623
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
it is the existence of jobs that is essential. An ALJ is not
required to consider the hiring practices of employers, or
whether a claimant actually could obtain work if he or she
applied. Nor is an ALJ precluded from doing so. However, we
must still consider Beltran’s application for benefits in light
of her own situation.
[7] 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 dis-
ability 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 suf-
fered from back and foot pain. Even if Jennie Beltran were
able to find an open position, it is extremely unlikely that a
woman with her physical and mental limitations—who at the
time in question was forty-nine years old and only possessed
a high school degree—would be able to get to the job, let
alone be hired 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 exis-
tence of a few isolated jobs.” Walker, 546 F.2d at 819. Con-
sidering 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 claim-
4624 BELTRAN v. ASTRUE
ant from obtaining disability benefits on the basis of the exis-
tence of a few isolated jobs.
[8] 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 judg-
ment to the Commissioner of Social Security and REMAND
for further proceedings consistent with this opinion.
IKUTA, Circuit Judge, dissenting:
Today, the majority usurps the ALJ’s role as factfinder and
decides that its own notion of “unconscionability” trumps the
Social Security Act, the regulations, and Ninth Circuit prece-
dent. Never mind that Congress placed the responsibility on
the ALJ to review the record and figure out “the most [Bel-
tran] can still do despite [her] limitations,” 20 C.F.R.
§ 404.1545(a)(1); see also § 404.1546(c), and that Congress
instructed the ALJ to disregard whether Beltran would actu-
ally be hired if she applied for the jobs she is capable of per-
forming, see 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
§ 404.1566(a), (c); see also Martinez v. Heckler, 807 F.2d
771, 774-75 (9th Cir. 1987). The majority runs roughshod
over these congressional commands, not to mention the
requirement that this court defer to the ALJ’s determination
if supported by substantial evidence, which the Supreme
Court has defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Rich-
ardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
BELTRAN v. ASTRUE 4625
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quo-
tation marks omitted)); see also 42 U.S.C. § 405(g).
The ALJ here quite reasonably determined that during the
time period at issue, Beltran was capable of performing a lim-
ited range of unskilled, sedentary work.1 The ALJ properly
relied on the vocational expert’s testimony regarding the num-
ber of jobs that Beltran was capable of performing despite her
limitations. See Bayliss v. Barnhart, 427 F.3d 1211, 1217-18
(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 “unconsciona-
ble” to expect Beltran to find one of the sedentary jobs identi-
fied by the vocational expert because “it is extremely unlikely
that a woman with her physical and mental limitations—who
at the time in question was forty-nine years old and only pos-
sessed a high school degree—would be able to get to the job,
let alone be hired as a surveillance system monitor.” Maj. op.
at 4623.
The majority has no business speculating as to whether
Beltran would be able to get to the job or be hired for 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.
1
The majority fails to acknowledge that many of the limitations that, per
the majority, make it “unconscionable to expect Beltran to find even one
of the 135 jobs as a surveillance system monitor in her region,” maj. op.
at 4623, were caused by her severe alcohol abuse. It is well established
that limitations caused by alcohol abuse cannot form the basis of a disabil-
ity 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 alcohol); Parra v. Astrue, 481 F.3d 742,
747-49 (9th Cir. 2007) (holding that benefits must be denied if the limita-
tions that would remain if the claimant stopped using alcohol would not
be disabling).
4626 BELTRAN v. ASTRUE
We are required to affirm the ALJ’s determination of Bel-
tran’s residual functional capacity so long as it is supported by
substantial evidence, see Bayliss, 427 F.3d at 1217, and we
may not collaterally attack the ALJ’s factual findings when
considering whether the number of jobs available to a person
with Beltran’s limitations is “significant” under the regula-
tions. Moreover, the majority’s approach has no basis in the
applicable law. Congress established that in determining
whether a claimant can perform work that exists in the
national economy, it is irrelevant “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);2 see also
2
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
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. We will determine that you are not dis-
abled 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;
BELTRAN v. ASTRUE 4627
Martinez, 807 F.2d at 774-75 (“Congress has explicitly deter-
mined that it is the existence of jobs that is essential, and that
an administrative law judge is not required to consider the hir-
ing practices of employers, or whether a claimant could actu-
ally obtain work if he applied for it.”). Given this clear
direction, the majority has it upside down when it claims that
the ALJ erred in not considering whether Beltran could actu-
ally “find” a job vacancy or “be hired” if she applied to get
the existing jobs she was capable of performing. Maj. op. at
4623.
The majority makes yet another error when it decides it is
better situated than the ALJ to determine 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). The majority fails to
give the deference owed to the adjudicative determination of
the ALJ regarding this essentially factual finding.3 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.” (quot-
ing Martinez, 807 F.2d at 775)). And yet the majority pro-
(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.
3
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 gen-
eral 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.
4628 BELTRAN v. ASTRUE
vides no persuasive reasoning for its pronouncement 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. Although the majority rattles off numerous
cases, the only case in which we actually reversed an ALJ’s
determination on this issue was 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). Our decision that “a few scattered
jobs” is not a “significant number” is scarcely controversial,
and it certainly does not support the majority’s determination
that 1,680 jobs isn’t either. 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.
Our holding in Barker compels the conclusion that 135 jobs
in the regional economy constitutes a significant number of
jobs. There, we held that 1,266 regional jobs constituted a sig-
nificant number because it fell “within the parameters of ‘sig-
nificant numbers’ found” by other courts. Barker, 882 F.2d at
1479. In defining these parameters, we relied in part on a dis-
trict court case holding that the 125 to 240 tune-up mechanic
positions the claimant was capable of performing “consti-
tute[d] a ‘significant’ number as that term is used in the Sec-
retary’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 natu-
rally 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
685, 690 (9th Cir. 2009). Here, the ALJ’s determination that
the number of jobs identified by the vocational expert was
BELTRAN v. ASTRUE 4629
significant and thus that Beltran was not disabled is supported
by substantial evidence. 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. Sha-
lala, 43 F.3d 1483 (10th Cir. Dec. 21, 1994) (unpublished
table decision) (holding that 195 jobs in the state was a signif-
icant 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 gain-
ful work existed in the national economy).
Because the majority here usurps the role Congress gave to
the ALJ, and tramples the plain language of the statute, I
respectfully dissent.