Griselda Farias v. Michael Astrue , 519 F. App'x 439 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GRISELDA FARIAS, No. 11-57088
Plaintiff - Appellant, D.C. No. 2:11-cv-01170-FFM
v.
MEMORANDUM *
CAROLYN W. COLVIN, Acting
Commissionner of Social Security,**
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Frederick F. Mumm, Magistrate Judge, Presiding
Argued and Submitted May 10, 2013
Pasadena, California
Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Carolyn Colvin is substituted for her predecessor, Michael Astrue, as
Acting Commissioner of the Social Security Administration. Fed R. App. P.
43(c)(2).
***
The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.
Griselda Farias appeals the district court’s order upholding the
Commissioner’s denial of disability insurance benefits and supplemental security
income benefits. We vacate the district court’s order and remand for further
proceedings consistent with this disposition.
1. The ALJ erred by failing to inquire whether the vocational expert’s (VE)
testimony regarding the job requirements for ticket taker (DOT 344.667-010), copy
messenger (DOT code 239.677-010) and hostess (DOT code 349.677-014)
conflicts with the Dictionary of Occupation Titles (DOT). SSR 00–4p, 2000 WL
1898704 (Dec. 4, 2000). See Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th
Cir.2007). The ALJ’s error was not harmless as to the occupations of ticket taker
and copy messenger because the VE’s testimony that these jobs “have occasional
handling requirements but no fingering requirements” conflicts with the DOT.
Under the DOT’s definitions, the job of ticket taker has frequent handling and
occasional fingering requirements, see Dictionary of Occupational Titles
344.667-010, available at 1991 WL 672863, and the job of copy messenger
requires frequent handling, see Dictionary of Occupational Titles 239.677-010,
available at 1991 WL 672233. Because the ALJ failed to inquire about these
material conflicts, we cannot determine whether substantial evidence supports the
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ALJ’s findings as to the occupations of ticket taker and copy messenger. See
Massachi, 486 F.3d at 1153-54.
2. No “reasonable mind” could accept the employment numbers proffered
by the VE as substantial evidence that someone with Farias’ characteristics and
residual functional capacity (RFC) could perform the job of hostess (DOT
349.667-014). See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). DOT
349.667-014 corresponds to the occupation of a head host/hostess of a dance hall,
who:
Introduces unaccompanied persons at dancehall to
HOSTS/HOSTESSES, DANCE HALL (amuse. & rec.), explaining
procedure of engaging social partner. Inspects dress of
HOSTS/HOSTESSES, DANCE HALL (amuse. & rec.) to ensure that
they present clean and pleasing personal appearance. Attempts to
distribute patrons equally among HOSTS/ HOSTESSES, DANCE
HALL (amuse. & rec.).
Dictionary of Occupational Titles 349.667-014, available at 1991 WL 672884.
A reasonable mind would not accept the VE’s testimony that there are 3,600
head dance hall hostess positions in the local economy and 342,000 in the national
economy. The most plausible explanation appears to be that the VE properly
testified that a person with Farias’ characteristics and RFC could perform the job
requirements of head dance hall hostess but erroneously provided employment data
for restaurant hostess – an occupation that exists in far larger numbers. Notably,
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the employment numbers reported by the Bureau of Labor Statistics for the
occupation of restaurant host/hostess are very similar to the numbers the VE
proffered for the job of head dance hall hostess. See Hosts and Hostesses,
Restaurant, Lounge, and Coffee Shop, Bureau of Labor Statistics,
http://www.bls.gov/oes/current/oes359031.htm (341,400 such jobs exist nationally
based on the most current BLS data); News, Bureau of Labor Statistics (May 1,
2009), http://www.bls.gov/news.release/archives/ocwage_05012009.pdf (349,990
such jobs existed nationally in 2008). The ALJ’s conclusion is therefore not
supported by substantial evidence – “such relevant evidence as a reasonable mind
might accept as adequate to support [the ALJ’s] conclusion.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007).
Accordingly, we vacate the decision of the district court and remand with
instructions to remand to the Commissioner for further consideration and
testimony concerning the types of jobs that Farias could perform and the numbers
of those positions that exist in the economy.
VACATED and REMANDED.
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