Beltran v. Astrue

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 390. I cannot agree with either of these improper decisions.

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 390.

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 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 determi*392nation 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 (“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 speculation that Beltran would be unable to actually find one of the surveillance system monitor jobs. Maj. op. at 390.

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 *393(“[WJhether 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.

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 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 decid*394ing “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.

. 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 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.

. 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 unequivo*393cal conclusion that there were 135 jobs in the regional economy and 1,680 jobs in the national economy that Beltran was capable of performing.

. 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.