Day v. Colvin
Filing
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ORDER by Judge Kandis A. Westmore granting 17 Motion for Summary Judgment and Remanding the Case for an Immediate Award of Benefits. (kawlc1, COURT STAFF) (Filed on 10/13/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MARTIN DAY,
Case No. 14-cv-04919-KAW
Plaintiff,
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v.
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CAROLYN W. COLVIN,
Defendant.
ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
AND REMANDING THE CASE FOR AN
IMMEDIATE AWARD OF BENEFITS
Re: Dkt. No. 17
United States District Court
Northern District of California
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On August 19, 2015, Plaintiff Martin Day filed a motion for summary judgment in this
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matter. The Government’s opposition was due on or before September 18, 2015. (See Stipulation,
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Dkt. No. 16.) To date, the Government has not filed an opposition despite its prior
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communication with Plaintiff’s counsel. See id.
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Accordingly, the motion for summary judgment is GRANTED as unopposed and the case
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is REMANDED. See Judge Westmore’s General Standing Order ¶ 22 (“The failure of the
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opposing party to file a memorandum of points and authorities in opposition to any motion shall
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constitute consent to the granting of the motion”).
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Furthermore, the remand is for an immediate award of benefits, as “there are no
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outstanding issues that must be resolved before a determination of disability can be made.” Smolen
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v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996) (citations omitted); see also Harman v. Apfel, 211
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F.3d 1172, 1178 (9th Cir. 2000). Specifically, at Step 5, the ALJ erred in determining that there
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are a significant number of jobs in the national economy that Plaintiff is capable of performing
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with his residual functional capacity (“RFC”). (See Pl.’s Mot. at 10-11.) The burden of
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establishing that there exists other work in “significant numbers” lies with the Commissioner.
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Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999).
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The ALJ determined that Plaintiff had the RFC to perform sedentary work, as defined in
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20 C.F.R. 404.1567(a), except occasional stooping, crawling, and bending; no foot pedals or
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uneven surfaces; no climbing or balancing; and avoid extreme heat or cold. Administrative Record
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(“AR”) 30. At the hearing, the vocational expert (“VE”) testified that Plaintiff could perform the
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positions of printed circuit board assembler and table worker. AR 80. There are approximately
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270 printed circuit board positions in California, half of which are located in Northern California,
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and 3,000 nationally. AR 33, 80. There are approximately 310 table worker positions in
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California, half of which are located in Northern California, and 3,700 nationally. AR 33, 80.
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The Ninth Circuit has “never set out a bright-line rule for what constitutes a ‘significant
number’ of jobs,” but has found a “comparison to other cases . . . instructive.” Beltran v. Astrue,
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United States District Court
Northern District of California
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700 F.3d 386, 389 (9th Cir. 2012). In Beltran, the Ninth Circuit determined that 135 jobs in the
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Greater Metropolitan Los Angeles and Orange County region and 1,680 national jobs were not a
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significant number of jobs. Id. at 389-90. In making that determination, the court considered cases
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that addressed what constitutes a significant number of jobs. See id. at 389 (citing Barker v. Sec'y
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of Health & Human Servs., 882 F.2d 1474, 1479 (9th Cir. 1989) (1,266 jobs regional jobs
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significant); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1987) (amended), (3,750 to 4,250
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jobs in Greater Metropolitan Los Angeles and Orange County region significant); Thomas v.
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Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (1,300 jobs in the Oregon region and 622,000 in the
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national economy significant); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (30,000
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jobs in Los Angeles County region significant); Moncada v. Chater, 60 F.3d 521, 524 (9th Cir.
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1995) (2,300 jobs in San Diego County region and 64,000 nationwide significant)).
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Here, there are only 270 printed circuit board jobs and 310 table worker jobs in California,
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with half of each located in Northern California. AR 80. The VE did not define the “Northern
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California” region. According to 2010 census data, the nine counties that comprise the San
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Francisco Bay Area—the counties of Alameda, Contra Costa, Marin, Napa, San Francisco, San
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Mateo, Santa Clara, Solano, and Sonoma—have a total population of 7,105,739. See generally
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U.S. CENSUS, 2010 Census Interactive Population Search,
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http://www.census.gov/2010census/popmap/ipmtext.php?fl=06 (last visited Oct. 13, 2015). The
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Northern California counties of Butte, El Dorado, Monterey, Placer, Sacramento, Santa Cruz, San
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Joaquin, Shasta, Stanislaus, Tulare, and Yolo have an additional population of 4,865,727. Id.
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Thus, the total population of these Northern California counties—of which several smaller
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counties have been excluded from this calculation—is approximately 12,000,000. Id.
To compare, Los Angeles County has a population of 9,818,605, Orange County has a
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population of 3,010,232, and San Diego County has a population of 3,095,313. Id. Thus, the
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Northern California region has a population comparable to the Greater Metropolitan Los Angeles
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County and Orange County region in Martinez and Beltran, and is larger than Los Angeles County
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in Johnson, and San Diego County in Moncada. At the hearing, the VE testified that the Northern
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California region has only 135 printed circuit board jobs and 155 table worker jobs. AR 80. Under
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United States District Court
Northern District of California
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Beltran, 290 jobs do not constitute a significant number of jobs in the regional economy. Beltran,
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700 F.3d at 389.
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Similarly, the 3,000 printed circuit board jobs and 3,700 table worker jobs available
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nationally are not significant, as Northern California is one of most populous regions in the
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country and approximately the same size as the region in Beltran, in which the Ninth Circuit held
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that “[i]f 135 jobs available in one of the largest regions in the country is not a ‘significant
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number,’ then 1,680 jobs distributed over several regions cannot be a ‘significant number,’ either.
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Id. at 390. Indeed, while 6,700 total jobs is larger than the 1,680 figure in Beltran, these numbers
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distributed across the entire nation do not appear to be significant, as significant numbers tend to
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be in the tens of thousands. See Thomas, 278 F.3d at 960 (622,000 jobs in the national economy);
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see also Moncada, 60 F.3d at 524 (64,000 jobs in the national economy). Thus, the ALJ failed to
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satisfy his burden to establish that significant numbers of jobs exist in either the regional or
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national economies that Plaintiff can perform given his residual functional capacity, rendering
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Plaintiff disabled under the Social Security Act.
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In light of the foregoing, Plaintiff’s motion for summary judgment is GRANTED as
unopposed, and the case is REMANDED for an immediate award of benefits.
IT IS SO ORDERED.
Dated: October 13, 2015
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KANDIS A. WESTMORE
United States Magistrate Judge
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United States District Court
Northern District of California
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