Barrett, Linda P. v. Barnhart, Jo Anne ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-1063
LINDA P. BARRETT,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, Commissioner of Social Security,
Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Wisconsin.
No. 02-C-303-S—John C. Shabaz, Judge.
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On Petition for Rehearing
SUBMITTED APRIL 21, 2004—DECIDED MAY 11, 2004
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Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
PER CURIAM. The government, distressed by one sentence
in our opinion in Barrett v. Barnhart, 355 F.3d 1065 (7th Cir.
2004), asks us to change it (the government does not ask us
to reconsider our decision, which was adverse to it). The
sentence is: “The test [of the plaintiff’s entitlement to
disability benefits] is whether she is so disabled that there
are no jobs in reasonable proximity to where she lives that she
is physically able to do.” 355 F.3d at 1067 (emphasis added).
2 No. 03-1063
It is the phrase that we have italicized that bothers the
government, which points out that the law does not require,
to defeat a finding of disability, that jobs exist in the imme-
diate area in which the claimant lives. 42 U.S.C.
§ 423(d)(2)(A) provides that a person is disabled if he cannot
do his previous work or “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.” That is the language
the government would like us to substitute.
Yet in our experience, and, it seems, in that of the other
circuits as well, the vocational experts who testify in social
security disability cases concerning the 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. See, e.g., Fastner v. Barnhart, 324 F.3d 981, 985
(8th Cir. 2003); Johansen v. Barnhart, 314 F.3d 283, 287 (7th
Cir. 2002); Donahue v. Barnhart, 279 F.3d 441, 444 (7th Cir.
2002); Howard v. Commissioner of Social Security, 276 F.3d 235,
238-39 (6th Cir. 2002); Dixon v. Massanari, 270 F.3d 1171,
1179 (7th Cir. 2001); Clifford v. Apfel, 227 F.3d 863, 869 (7th
Cir. 2000); Shramek v. Apfel, 226 F.3d 809, 815 (7th Cir. 2000);
Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000); Lee v.
Sullivan, 988 F.2d 789, 792 (7th Cir. 1993); Ehrhart v. Sec’y of
Health & Human Services, 969 F.2d 534, 540 (7th Cir. 1992).
We have found only a few cases in which national numbers
alone were cited as a basis for denying benefits. Kasarsky
v. Barnhart, 335 F.3d 539, 543 (7th Cir. 2003) (per curiam);
No. 03-1063 3
Mayes v. Massanari, 276 F.3d 453, 458 (9th Cir. 2001); Harmon
v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999). In practice, the
principal significance of the “other regions” language in the
statute is to prevent the Social Security Administration from
denying benefits on the basis of “isolated jobs that exist only
in very limited numbers in relatively few locations outside
of the region where [the applicant] live[s].” 20 C.F.R. §
404.1566(b).
Our formulation that the government doesn’t like was
thus descriptively accurate; it was not intended to alter the
statutory standard.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-04