No matter the legal definitions, the jobs aren't coming back.

The Administrative Law Judge denied the claimant’s application, acknowledging that he might not be able to perform his past relevant work, but ruling that he could still do other work, that was physically less demanding.

The claimant appealed to the federal district court which affirmed that agency decision, and he appealed again to the federal circuit court of appeals.

In reaching his conclusion, the ALJ relied on a vocational expert who testified that work existed that an individual with the claimant’s residual functional capacity could do, namely, 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 claimant questioned the interpretation of the statutory terms “region where such the individual lives” and “significant number” as relating to the number of jobs identified.  The relevant statutory language, as quoted by the court, is:

“[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.

[42 U.S.C. ] § 1382c(a)(3)(B) (emphasis added). That same section defines ‘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.

“Id. (emphasis added). The accompanying regulations reiterate that ‘work exists in the national economy when it exists in significant numbers either in the region where [the individual lives] or in several other regions of the country.’ 20 C.F.R. § 416.966(a).”

The court of appeals noted that the term “region,” has not been formally defined by the Commissioner of Social Security.

The claimant specifically asked the reviewing court to find that Bakersfield-Delano, one of California’s twenty-six metropolitan statistical areas to be a “region” as opposed to considering the entire state of California to be a region.  The 9^th Circuit Court of Appeals rejected the claimant’s argument that Social Security should use the census bureau’s definition of a metropolitan statistical area as a “region” for purposes of the Social Security Act.  The court found that with respect to “local area” also, that: “the regulations flowing from the statute are clear that ‘region’ is not limited by statute or by regulations to the local or immediate area of the claimant.”

The court declined to rule that California was too large to qualify as a region “on this record,” stating that the claimant had asked it “to re-write the Social Security Act and the Commissioner’s implementing regulations.”

The court further ruled that “we have never set out a bright-line rule for what constitutes a ‘significant number’ of jobs. Nevertheless, we have upheld a number of jobs less than 2,500 in a handful of cases, and in those cases, the regions were smaller than the State of California.”

Although the court stated, “policy decisions such as those implicated by [the claimant’s] arguments are best addressed to Congress and the Social Security Administration, not to us,” it added, “We can conceive of a factual record which might demonstrate that using an entire state as large as California as a ‘region’ — or for that matter Alaska or Montana — would be problematic.”

With respect to the number of jobs available nationally, the court observed that:  “Under our current case law, the ALJ’s finding that 25,000 national jobs is sufficient presents a close call.” (Citations omitted.)  However, the court did not disturb the ALJ’s decision.

ANALYSIS

In this case, the Circuit Court of Appeals for the Ninth Circuit suggests that it might reconsider its holdings in a case where fewer numbers of jobs might be considered not “significant.”

While a more precise definition of “region” and “significant numbers” would benefit applicants and adjudicators now, even the Social Security Administration admits that its methods of occupational analysis are out-of-date. 

See Attorney Traver’s comments on Social Security’s most recent proposal: http://ssaconnect.com/tfiles/OIDAP-Comments.pdf

Gutierrez v. Commissioner of Social Security, 740 F. 3d 519 (9^th Cir. 2014).

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