Gutierrez v. Comm'r of Soc. Sec.

• Decision Date: 23 January 2014
• Docket Number: No. 12–15472.,12–15472.
• Citation: 740 F.3d 519
• Parties: Carlos GUTIERREZ, Plaintiff–Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

740 F.3d 519

Carlos GUTIERREZ, Plaintiff–Appellant,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant–Appellee.

No. 12–15472.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 6, 2013.

Filed Jan. 23, 2014.

Lawrence Rohlfing (argued), Santa Fe Springs, CA, for Plaintiff–Appellant.

Elizabeth Firer (argued), Special Assistant United States Attorney; Benjamin B. Wagner, United States Attorney; Donna L. Calvert, Acting Regional Chief Counsel, San Francisco, CA, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of California, Dennis L. Beck, Magistrate Judge, Presiding. D.C. No. 1:11–cv–00105–DLB.

Before: STEPHEN S. TROTT and MARY H. MURGUIA, Circuit Judges, and DAVID A. EZRA, District Judge.^*

OPINION

TROTT, Circuit Judge:

OVERVIEW

Carlos Gutierrez filed claims for supplemental security income (“SSI”). The Commissioner denied the claims by initial determination, and Gutierrez requested a de novo hearing by an Administrative Law Judge (“ALJ”). The ALJ conducted the five-step sequential evaluation process described in 20 C.F.R. § 416.920 and concluded at the fifth step that Gutierrez did not suffer from a disability because he could perform a significant number of jobs in the national economy. The ALJ found that despite Gutierrez's residual functional capacity, age, education, and work experience, he could make the vocational adjustment to other work as an assembler (1,500 jobs in the State of California and 15,000 jobs in the nation) or as an almond blancher (1,000 jobs in the State of California and 10,000 jobs in the nation). The district court denied his appeal from the Commissioner's final decision.

Gutierrez raises one issue on appeal: whether the ALJ failed to make an adequate showing that a significant number of jobs existed in the region in which Gutierrez lived or in several regions of the country. This issue in turn requires us to grapple with the meaning in the controlling statute of the term “region,” which the Commissioner has not yet formally defined.

We have jurisdiction over this timely appeal pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Carlos Gutierrez (“Gutierrez”), who lives in Bakersfield, California, filed claims in 2005 and 2006 for SSI under Title XVI of the Social Security Act, asserting that he had been disabled since September 1, 2000, due to his various recognized medical and mental conditions.

The Social Security Commissioner denied Gutierrez's claims, concluding that although Gutierrez may not have been able to perform his past work, based on his age, education, and past work experience, he could still do other physically less demanding work. Thus, Gutierrez's condition was not severe enough to prohibit him from working.

On April 5, 2007, Gutierrez requested reconsideration of the Commissioner's decision, which was denied.

Gutierrez requested a de novo hearing before an ALJ on August 15, 2007. The ALJ used the familiar five-step sequential evaluation process outlined in 20 C.F.R. § 416.920 to determine whether Gutierrez suffered from a “disability” under the Social Security Act. Gutierrez passed the initial four steps, but his claim foundered on step five.

After considering Gutierrez's age, education, work experience, and residual functional capacity, the ALJ concluded that jobs existed in significant numbers in the national economy which Gutierrez could perform. Relying on the vocational expert's (“VE”) testimony at the hearing on November 5, 2009, the ALJ found that Gutierrez could work as an assembler, as there were 1,500 jobs available in California and 15,000 such jobs available nationally. The ALJ also found that Gutierrez could work as an almond blancher, because there were 1,000 jobs available in California and 10,000 such jobs available nationally. Thus, because Gutierrez could perform 2,500 jobs in California and 25,000 jobs in the nation, the ALJ concluded that Gutierrez did not suffer from a disability under the Social Security Act.

The Appeals Council denied Gutierrez's request for review. Thus, the ALJ's decision became the final decision of the Commissioner of Social Security.

Gutierrez brought a civil action in the Eastern District of California. The district court determined that the ALJ's decision was supported by substantial evidence and was based on proper legal standards. Gutierrez v. Astrue, No. 1:11–cv–0105–DLB, 2012 WL 259141, at *6 (E.D.Cal. Jan. 26, 2012).

First, the court addressed Gutierrez's primary argument that the ALJ had erred at step five by failing to demonstrate that Gutierrez could perform “substantial gainful work which exist[ed] in the national economy.” Gutierrez asserted that even though 42 U.S.C. § 1382c(a)(3)(B) defined “work which exists in the national economy” as “work which exists in significant numbers either in the region where such individual lives or in several regions of the country,” the ALJ erred by considering the State of California to be a “region” for purposes of § 1382c(a)(3)(B).

In rejecting Gutierrez's argument, the court relied on De La Cruz v. Astrue, No. 1:08–cv–0782–DLB, 2009 WL 1530157, at *10–11 (E.D.Cal. May 28, 2009), where the same court had previously rejected similar arguments. Gutierrez, 2012 WL 259141, at *4–5. In De La Cruz, the court held that 2,756 jobs in California was sufficient for purposes of § 1382c(a)(3)(B). 2009 WL 1530157, at * 10–11. The court in De La Cruz looked to Barrett v. Barnhart, 368 F.3d 691, 692 (7th Cir.2004) (per curiam), in which the Seventh Circuit had acknowledged that “vocational experts who testify ... concerning availability of jobs that the applicant has the physical ability to perform almost always confine their testimony to indicating the number of such jobs that exist in the applicant's state, or an even smaller area.” Id. at *10 (quoting Barrett, 368 F.3d at 692). After recounting the reasoning in De La Cruz, the district court held that 2,500 positions across California constituted work that existed in significant numbers in the region where Gutierrez lived.

Second, the court addressed Gutierrez's contention that the court should adopt the geographical delineations provided by the Metropolitan and Micropolitan Statistical Areas to define “region.” According to the Office of Management and Budget, a Metropolitan and Micropolitan Statistical Areas is “an area containing a recognized population nucleus and adjacent communities that have a high degree of integration with that nucleus.” Standards for Defining Metropolitan and Micropolitan Statistical Areas, 65 Fed.Reg. 82228–01 (Dec. 27, 2000).

In rejecting this argument, the court held that the Social Security Act and the Social Security Commissioner's Regulations adequately defined “region.” The court explained that 20 C.F.R. § 416.966(a)(1) specifies that “it does not matter whether work exists in the immediate area” where a claimant lives, but that 20 C.F.R. § 416.966(b), on the other hand, provides that “[i]solated jobs that exist only in very limited numbers in relatively few locations outside of the region where [a claimant lives] are not considered work which exists in the national economy.” Because the court found that the statute and regulation provided sufficient direction to define “region,” the court declined to define “region” as one of the Metropolitan and Micropolitan Statistical Areas. As such, the court found that the State of California was a “region” under § 1382c(a)(3)(B) and that, therefore, the ALJ had not erred.

STANDARD OF REVIEW

The court reviews a district court's judgment upholding an ALJ's denial of social security benefits de novo. See Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir.2010). However, the court reviews an ALJ's factual findings for substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.1997)). The court must consider the record as a whole and weigh “both the evidence that supports and the evidence that detracts from the ALJ's” factual conclusions. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir.2001). “If the evidence can reasonably support either affirming or reversing,” the reviewing court “may not substitute its judgment” for that of the Commissioner. Reddick v. Chater, 157 F.3d 715, 720–21 (9th Cir.1996).

Nevertheless, a decision supported by substantial evidence will still be set aside if the ALJ did not apply proper legal standards. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.2009); see also Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir.2003) (requiring that a Commissioner's decision be free of “legal error”).

DISCUSSION ¹

Under the Social Security Act, a claimant is considered “disabled” if he is “unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). However, that statutory definition of disability is qualified as follows:

[A]n 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.

Id. § 1382c(a)(3)(B) (emphasis added). That same section defines “in the national economy”:

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