Rosa Maria Vargas v. Carolyn W Colvin, No. 2:2013cv02116 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROSA MARIA VARGAS, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY,1 ) ) Defendant. ) ___________________________________) NO. CV 13-2116-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 /// 23 /// 24 /// 25 /// 26 27 1 28 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. § 405(g). 1 PROCEEDINGS 2 3 Plaintiff filed a complaint on March 28, 2013, seeking review of 4 the Commissioner s denial of disability insurance benefits. 5 parties filed a consent to proceed before a United States Magistrate 6 Judge on May 10, 2013. Plaintiff filed a motion for summary judgment 7 on September 24, 2013. Defendant filed a motion for summary judgment 8 on November 20, 2013. 9 submission without oral argument. 10 The The Court has taken the motions under See L.R. 7-15; Order, filed April 1, 2013. 11 12 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 13 14 Plaintiff, a former stock clerk, alleges disability since 15 July 30, 2004, based on a combination of exertional and non-exertional 16 impairments (Administrative Record ( A.R. ) 30-941). 17 insured date was December 31, 2009, at which time Plaintiff was 52 18 years old (A.R. 31, 47, 357). Plaintiff s last 19 20 In the most recent administrative decision, an Administrative 21 Law Judge ( ALJ ) found that [t]hrough the date last insured, the 22 claimant had the following severe impairments: osteoarthritis of the 23 back, both hands, and both knees; as well as depression, and other 24 psychological factors affecting her physical medical condition; and 25 diabetes (A.R. 33). 26 insured, the claimant was unable to perform any past relevant work 27 (A.R. 47). 28 insured, the claimant had the residual functional capacity to perform The ALJ found that [t]hrough the date last The ALJ also found, however, that through the date last 2 1 light work . . . except she is precluded from climbing ladders, ropes 2 or scaffolds; she is precluded from working at unprotected heights; 3 she can tolerate only occasional vibration or exposure to extreme 4 cold; she can occasionally climb ramps or stairs; she can occasionally 5 balance, crouch, crawl, kneel, stoop, or handle or finger 6 (bilaterally); and she is limited to simple routine tasks (A.R. 38). 7 8 A vocational expert testified that a person having the residual 9 functional capacity the ALJ found to exist could work as a school bus 10 monitor . . . [i]n the local economy, 140 jobs; in the national 11 economy, 5,500 (A.R. 143).2 12 denied disability benefits, stating that the job of school bus monitor 13 existed in significant numbers in the national economy (A.R. 48). 14 The Appeals Council denied review (A.R. 1-3). In reliance on this testimony, the ALJ 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. section 405(g), this Court reviews the 19 Administration s decision to determine if: (1) the Administration s 20 findings are supported by substantial evidence; and (2) the 21 Administration used proper legal standards. 22 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 23 499 F.3d 1071, 1074 (9th Cir. 2007). See Carmickle v. 24 25 26 27 28 2 The ALJ s decision states that the Vocational Expert estimated there were 140 such jobs; and nationally, there would be over 5,500 (A.R. 48). Actually, the vocational expert did not estimate that there would be over 5500 (emphasis added). Defendant s Motion contains a similar mischaracterization of the evidence (Defendant s Motion at 8 ( at least 5,500 exist throughout the national economy ) (emphasis added)). 3 1 DISCUSSION 2 3 This case requires that the Court determine whether 140 jobs 4 locally and 5,500 jobs nationally constitute significant numbers 5 of jobs within the meaning of 42 U.S.C. section 423(d)(2)(A). 6 Following the rationale of the Ninth Circuit s decision in Beltran v. 7 Astrue, 700 F.3d 386 (2012) ( Beltran ),3 this Court concludes that 8 these numbers of jobs are not significant numbers of jobs. 9 10 I. The Applicable Statute and the Burden on the Administration 11 12 Section 423(d)(2)(A) provides: 13 14 An individual shall be determined to be under a disability 15 only if his physical or mental impairment or impairments are 16 of such severity that he is not only unable to do his 17 previous work but cannot, considering his age, education, 18 and work experience, engage in any other kind of substantial 19 gainful work which exists in the national economy, 20 regardless of whether such work exists in the immediate area 21 in which he lives, or whether a specific job vacancy exists 22 23 24 25 26 27 28 3 This Court must follow the majority opinion in Beltran. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (district judge may not disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue ); Zuniga v. United Can Co., 812 F.2d 443, 450 (9th Cir. 1987) ( District courts are, of course, bound by the law of their own circuit. ). Consequently, Defendant s citation of the district court opinion in Beltran and Circuit Judge Ikuta s strongly worded dissenting opinion in Beltran can carry no persuasive weight herein. 4 1 for him, or whether he would be hired if he applied for 2 work. 3 to any individual), work which exists in the national 4 economy means work which exists in significant numbers 5 either in the region where such individual lives or in 6 several regions of the country. For purposes of the preceding sentence (with respect 7 8 9 After a claimant satisfies his initial burden of showing that a physical or mental impairment prevents him from performing his 10 previous work, the burden shifts to the [Administration] to show that 11 the claimant has the capacity to perform other work and that such 12 other work exists in the national economy. 13 F.2d 530, 532 (9th Cir. 1985). 14 exertional impairments significantly limit his or her range of work 15 the grids do not apply, and the testimony of a vocational expert is 16 required to identify specific jobs within the claimant s abilities. 17 Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988); see Tackett v. 18 Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999); Burkhart v. Bowen, 856 19 F.2d 1335, 1340-41 (9th Cir. 1988). 20 specific job the ALJ identified in denying disability benefits was the 21 job of school bus monitor (A.R. 48). Stone v. Heckler, 761 Where, as here, a claimant s non- In the present case, the only 22 23 24 II. Significant Numbers . . . in the Region Where Such Individual Lives 25 26 In Beltran, the Ninth Circuit determined that 135 jobs in the 27 region where the claimant lived did not constitute significant 28 numbers of jobs. Citing Walker v. Matthews, 546 F.2d 814, 820 (9th 5 1 Cir. 1976), the Beltran Court stated that where jobs are very rare or 2 generally unavailable to the claimant due to his limitations, an ALJ 3 errs in finding that significant numbers of jobs exist. 4 F.3d at 389. 5 of jobs qualifies as very rare or generally unavailable, a 6 comparison to other cases shows that this case fits comfortably within 7 Walker s purview. 8 constitutes a significant number of jobs. 9 other cases is instructive. Beltran, 700 Although, in Walker, we never established what number We have never set out a bright-line rule for what Id. However, a comparison to The Beltran Court then compared the 10 135 local jobs existing in that case to the numbers of local jobs the 11 Ninth Circuit previously had found significant. 12 Court observed that the 135 local jobs constituted only approximately 13 11 percent of the lowest number of local jobs the Ninth Circuit 14 previously had found significant. 15 concluded that 135 jobs in a single region qualifies as a very 16 rare number and therefore is not significant. Id. Id. The Beltran The Beltran Court then Id. 17 18 The rationale of Beltran compels the conclusion that 140 jobs in 19 the region where Plaintiff lives is not a significant number of 20 jobs. 21 region, the same local region involved herein. 22 number 140 to the numbers of local jobs found significant in 23 previous Ninth Circuit decisions reveals disparities nearly identical 24 to those observed in Beltran. 25 region qualifies as very rare and therefore not significant, 140 26 jobs in the same local region also qualifies as very rare and 27 therefore not significant. 28 58 (3d Cir. 1987) (appearing to deem 200 local jobs significant ); The local region involved in Beltran was the Los Angeles A comparison of the In short, if 135 jobs in the local But see Craigie v. Bowen, 835 F.2d 56, 6 1 see also Yelovich v. Colvin, 2013 WL 3216042, at *1 (9th Cir. June 27, 2 2013) (finding 900 jobs in the local region significant, and 3 observing that in Barker v. Secretary, 882 F.2d 1474, 1478-79 (9th 4 Cir. 1989), the Ninth Circuit referenced cases finding as few as 500 5 local jobs significant ). 6 7 III. Significant Numbers . . . in Several Regions of the Country 8 9 Although section 423(d)(2)(A) reads in the disjunctive, few 10 cases within or outside of the Ninth Circuit have relied exclusively 11 on a cumulation of jobs in non-local regions as the basis for denying 12 disability benefits. 13 Cir. 2004). 14 regions language in the statute is to prevent the Social Security 15 Administration from denying benefits on the basis of isolated jobs 16 that exist only in very limited numbers in relatively few locations 17 outside of the region where [the applicant] live[s] 20 C.F.R. § 18 404.1566(b). 19 for entitlement to disability benefits is whether the claimant is so 20 disabled that there are no jobs in reasonable proximity to where she 21 lives that she is physically able to do. 22 the United States District Court for the Central District of 23 California has also stated that [t]he better practice would be to 24 establish that there is a sufficient number of jobs in claimant s 25 region or in more than one region in the country. 26 2009 WL 1330799, at *5 (C.D. Cal. May 11, 2009); accord Pennington v. 27 Astrue, 2011 WL 4543967, at *18 (D. Ariz. Sept. 30, 2011). 28 in accordance with the statute s disjunctive phrasing, this Court See Barrett v. Barnhart, 368 F.3d 691, 692 (7th In practice, the principal significance of the other Id. The Seventh Circuit has even stated that the test 7 Id. at 691. One judge in Espejo v. Astrue, Even so, 1 assumes that disability benefits must be denied when jobs do not exist 2 in significant numbers in the region where the claimant lives but do 3 exist in significant numbers in other regions of the country. 4 5 6 In concluding that 1,680 jobs nationally did not constitute significant numbers of jobs, the Beltran Court reasoned: 7 8 [W]e cannot consider the 1,680 jobs as a stand-alone figure; 9 rather, as the statute states, we must consider this number 10 in light of the fact that it represents jobs across several 11 regions. 12 significant number standing alone, distributing these jobs 13 between several regions across the nation shows that it is 14 not significant after all. 15 of the largest regions in the country is not a significant 16 number, then 1,680 jobs distributed over several regions 17 cannot be a significant number either. 18 what the floor for a significant number of jobs is in 19 order to reach this conclusion. Id. Although 1,680 jobs might seem a If 135 jobs available in one We need not decide 20 21 Beltran, 700 F.3d at 390. 22 23 The same reasoning appears to compel the conclusion that 5,500 24 jobs nationally does not constitute significant numbers of jobs. 25 140 jobs available in one of the largest regions in the country is not 26 a significant number, then 5,500 jobs distributed over several 27 regions would not appear to be a significant number either. 28 context, the term region is flexible and can refer to the entire 8 If In this 1 state or to a particular area of the state. Social Security Law 2 and Practice § 43:137 (Dec. 2013); cf. Harvey L. McCormick, Social 3 Security Claims and Procedures § 8:55 (6th ed. 2011) ( When 4 considering the number of jobs available to a Navajo claimant living 5 on Navajo land, the largest appropriate region is the Navajo Nation ). 6 In the present case, neither the vocational expert nor the ALJ 7 attempted to parse the 5,500 national number into the numbers of jobs 8 existing in particular regions of the country. 9 vocational expert or the ALJ identify how many regions of the country Nor did the 10 were involved in cumulating the 5,500 number. If one were 11 (conservatively) to limit the number of other regions nationally to 12 50 (comprising one region consisting of all of California outside the 13 Los Angeles region plus the other 49 states on a one region per state 14 basis), and if one were to distribute the remaining jobs across those 15 50 regions, the average number of jobs per region still would be 16 insignificant under Beltran. 17 18 A comparison of the present case to other post-Beltran cases also 19 suggests that 5,500 is not a significant number. 20 2013 WL 4816130, at *8-9 (E.D. Cal. Sept. 6, 2013) (deeming a close 21 call the issue of whether a 19,122 national number is a significant 22 number); Valencia v. Astrue, 2013 WL 1209353, at *18 (N.D. Cal. 23 March 25, 2013) (14,082 national number is not a significant number); 24 cf. Coletta v. Massanari, 163 F. Supp. 2d 1101, 1106 (N.D. Cal. 2001) 25 (pre-Beltran case expressing serious doubt that a 4,752 national 26 number is a significant number); but cf. Hoffman v. Astrue, 2010 WL 27 1138340, at *15 (W.D. Wash. Feb. 8, 2010), adopted, 2010 WL 1138341 28 (W.D. Wash. March 19, 2010) (pre-Beltran case holding that 150 jobs in 9 See Ochoa v. Colvin, 1 a single state and 9,000 jobs nationally constitute significant 2 numbers). 3 4 IV. Remand 5 6 When there exists error in an administrative determination, the 7 proper course, except in rare circumstances, is to remand to the 8 agency for additional investigation or explanation. 9 537 U.S. 12, 16 (2002) (citations and quotations omitted). INS v. Ventura, In the 10 present case, there already have been two Appeals Council remands and 11 four administrative hearings. 12 permitting the Commissioner to try again to prove the existence of 13 significant numbers of jobs Plaintiff can perform despite her 14 debilitating impairments would threaten to create the kind of heads 15 we win; tails, let s play again system of adjudication decried in 16 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 17 record establishes that Plaintiff was disabled as of the December 31, 18 2009 date last insured. 19 necessarily establish that Plaintiff s impairments existed at a 20 disabling level of severity as of the July 30, 2004 alleged onset 21 date. 22 been protracted, and the administrative record already is voluminous, 23 a limited remand is required. 24 (between July 30, 2004 and December 31, 2009) must be determined on 25 remand, and benefits must then be calculated accordingly. 26 Security Ruling 83-20; Armstrong v. Commissioner, 160 F.3d 587, 589-90 27 (9th Cir. 1998) ( If the medical evidence is not definite concerning 28 the onset date and medical inferences need to be made, SSR 83-20 Under these rare circumstances, The present However, the present record does not Therefore, although the administrative proceedings already have The precise disability onset date 10 See Social 1 requires the administrative law judge to call upon the services of a 2 medical advisor and to obtain all evidence which is available to make 3 the determination ) (citations and quotations omitted).4 4 5 CONCLUSION 6 7 For all of the foregoing reasons, Plaintiff s and Defendant s 8 motions for summary judgment are denied and this matter is remanded 9 for further administrative action consistent with this Opinion. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: December 4, 2013. 14 15 _______________/S/____________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4 On remand, the Administration may also consider, if necessary and appropriate, Plaintiff s January 25, 2012 application for Supplemental Social Security Income. 11
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