Brandon Dewolfe v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDON DEWOLFE,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 17-35574
No. 6:16-cv-00543-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted August 30, 2018**
Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges.
Brandon Lee DeWolfe appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social
Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
SEP 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir.
2016), and we reverse and remand for further proceedings.
The ALJ’s Step Five finding that a significant number of jobs exist in the
national economy that DeWolfe can perform lacks substantial evidentiary support.
The ALJ failed to resolve the apparent conflict between the title of the position the
vocational expert testified DeWolfe could perform—“retail surveillance
monitor”—and the job title included at the Dictionary of Occupational Titles
(“DOT”) entry the vocational expert identified—“surveillance system monitor.”
DOT 379.367-010 describes the job of “surveillance-system monitor” as a
government service position that “[m]onitors premises of public transportation
terminals to detect crimes or disturbances, using closed circuit television
monitors,” rather than a retail position. Although the Commissioner argues the
Department of Labor continues to maintain updated vocational information that
cross-references the DOT online through the O*Net Online Resource Center
(“O*Net”), and that a search of O*Net using the DOT code the vocational expert
provided reveals that the position of “retail loss prevention specialist” is now
encompassed by this DOT entry, this is not an explanation for the inconsistency
that the ALJ presented. The court may only affirm an ALJ’s decision based on
reasoning the ALJ elucidates in the disability decision. Trevizo v. Berryhill, 871
F.3d 664, 675 (9th Cir. 2017). Thus, the ALJ committed reversible error by failing

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to explicitly resolve the conflict between the vocational expert testimony and the
DOT. See Lamear v. Berryhill, 865 F.3d 1201, 1207 (9th Cir. 2017).
The ALJ’s failure to reconcile the vocational expert’s deviation from the
DOT concerning the position the vocational expert identified as one DeWolfe
could perform also affected the validity of the vocational expert’s testimony
concerning the number of available jobs. Without being able to determine which
position the vocational expert was testifying about—retail surveillance monitor or
surveillance-system monitor—it is not possible to assess whether the ALJ’s finding
that a significant number of jobs exist that DeWolfe could perform is supported by
substantial evidence. Because “we cannot discern the agency’s path” to finding at
Step Five that a significant number of jobs exist that DeWolfe can perform, the
Court must reverse the agency’s decision. See Brown-Hunter v. Colvin, 806 F.3d
487, 494 (9th Cir. 2015) (citation omitted).
Because the ALJ did not resolve the conflict between the vocational expert’s
testimony and the DOT, the record is ambiguous, and “additional proceedings
[could] remedy [the] defects in the original administrative proceeding.” Revels v.
Berryhill, 874 F.3d 648, 668 (9th Cir. 2017) (citation and quotation marks
omitted). Therefore, we remand to the agency to allow the ALJ to seek
clarification of the vocational expert’s testimony and cure the errors in the Step
Five findings. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105

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(9th Cir. 2014); see also Lamear, 865 F.3d at 1207 (concluding that, because the
ALJ did not inquire as to the conflict between the DOT and the vocational expert’s
testimony, the Court “must remand the case to permit the ALJ to follow up with
the [vocational expert]”).
REVERSED AND REMANDED.

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