Linda Lemauga v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
APR 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA LEMAUGA, No. 15-56611
Plaintiff-Appellant, D.C. No.
3:14-cv-01282-CAB-PCL
v.
NANCY A. BERRYHILL, Acting MEMORANDUM*
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted March 6, 2017
Pasadena, California
Before: PREGERSON, PAEZ, and BERZON, Circuit Judges.
Linda Lemauga appeals the district court’s grant of summary judgment
upholding the Administrative Law Judge’s (ALJ) denial of disability insurance
benefits. We have jurisdiction under 28 U.S.C. § 1291. We review the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court’s decision de novo and the ALJ’s decision for substantial evidence. Berry v.
Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). We reverse and remand.
This disability appeal involves only Step 5 of the five-step disability
analysis. At Step 5, the ALJ found that Lemauga could perform three jobs that
existed in significant numbers in the economy: (1) dowel inspector, (2) ticket
checker, and (3) telephone clerk.
The Commissioner concedes that the ALJ erred in relying on the ticket
checker and telephone clerk jobs, because those jobs require reasoning levels
inconsistent with Lemauga’s residual functional capacity. Therefore, the sole issue
before us is whether the ALJ’s error in relying on the ticket checker and telephone
clerk jobs was harmless. This question turns on whether a reasonable ALJ could
conclude that the limited availability of such inspector jobs, by itself, is enough to
support a disability determination. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th
Cir. 2015).
The vocational expert testified that there were 1,530 available inspector jobs
in the regional economy and 12,600 available inspector jobs in the national
economy. If either number is deemed significant, then the ALJ’s decision must be
upheld. See Beltran v. Astrue, 700 F.3d 386, 389-90 (9th Cir. 2012).
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1. In evaluating whether regional job numbers are significant, a comparison
to other cases and similarly-sized regions is “instructive.” See id. at 389
(comparing 135 available jobs in the Los Angeles/Orange County area to other
cases involving higher jobs numbers in metropolitan areas); see also Allino v.
Colvin, 83 F. Supp. 3d 881, 887 (N.D. Cal. 2015). Here, neither the vocational
expert, nor the ALJ, specified the size of the region in which the 1,530 available
inspector jobs exist. Without knowing the geographic size of the region in this
case, we cannot meaningfully compare this case to others to assess whether 1,530
available jobs is significant. After all, 1,530 jobs in a metropolitan area is different
from 1,530 jobs in an entire state, especially a state as large as California. Cf.
Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528 (9th Cir. 2002). As we cannot
“confidently conclude” that the error was harmless, we remand to the district court
with instructions to remand to the ALJ for further proceedings to define the region
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and evaluate whether the vocational expert’s regional job number is significant.1
See Marsh, 792 F.3d at 1173 (remanding to the ALJ was appropriate where the
court could not “confidently conclude” that the ALJ’s error was harmless).
2. The government does not argue before us that the 12,600 available dowel
inspector jobs in the national economy represent a significant number. We note
that this court has never found a similar number to be significant. Cf. Gutierrez v.
Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2002) (25,000 nationwide
jobs was significant); Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002)
(622,000 nationwide jobs was significant); Moore v. Apfel, 216 F.3d 864, 869 (9th
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Lemauga did not waive her challenge to the individual significance of the
inspector job numbers by not raising that specific issue before the ALJ. The
significance of the inspector job numbers is part and parcel of our harmless error
analysis for her claim that the ALJ erred in relying on the telephone clerk and
ticket checker jobs. In that respect, this case is unlike Meanel v. Apfel, 172 F.3d
1111, 1115 (9th Cir. 1999). In Meanel, the claimant raised new statistical evidence
for the first time on appeal, thus depriving the Commissioner of an opportunity to
evaluate that evidence, which the “ALJ, rather than this Court, was in the optimal
position” to do. Id. Here, Lemauga simply asks this court to determine whether
the ALJ’s error was harmless. Lemauga should not be faulted for failing to make
an argument before the ALJ that, at the time, was not pertinent. At the ALJ
hearing, the parties operated under the assumption that the available jobs numbers
for all three jobs were properly included in the analysis. The telephone clerk job
represented 164,000 jobs in the nation and all three jobs in the aggregate
represented 4,330 jobs in the region and 246,600 jobs in the nation. These
numbers were clearly significant. Gutierrez, 740 F.3d at 528 (2,500 jobs in the
state of California and 25,000 nationwide jobs were significant).
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Cir. 2000) (125,000 nationwide jobs was significant); Moncada v. Chater, 60 F.3d
521, 524 (9th Cir. 1995) (64,000 nationwide jobs was significant).
REVERSED AND REMANDED.
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