NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOLANDA RUIZ DE RIVERA, No. 16-55884
Plaintiff-Appellant, D.C. No. 2:15-cv-04625-DFM
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Douglas F. McCormick, Magistrate Judge, Presiding
Submitted February 5, 2018**
Pasadena, California
Before: W. FLETCHER, BERZON, and OWENS, Circuit Judges.
Yolanda Ruiz De Rivera appeals from the district court’s judgment
affirming the Commissioner of Social Security’s denial of her applications for
disability insurance benefits and supplemental security income under Titles II and
*
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).
XVI of the Social Security Act. We review the district court’s decision de novo,
and the Commissioner’s denial of benefits must be supported by substantial
evidence and a correct application of the law. Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009). As the parties are familiar with the
facts, we do not recount them here. We reverse and remand.
This appeal concerns step five of the sequential evaluation process, where
the Commissioner bears the burden to identify specific jobs existing in significant
numbers that a claimant can perform despite her identified limitations. See Zavalin
v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). The Administrative Law Judge
(“ALJ”) found that De Rivera could perform two jobs: (1) conveyor line bakery
worker; and (2) fish scaling machine operator.
Substantial evidence does not support the ALJ’s finding that De Rivera was
capable of performing the conveyor line bakery worker job. The ALJ found that
De Rivera cannot read English, but failed to address the vocational expert’s (“VE”)
concession that the bakery job may require reading English. The job description in
the Dictionary of Occupational Titles (“DOT”) also indicates that this position may
require reading. See DOT 524.687-022 (4th ed. 1991), 1991 WL 674401 (listing
conveyor line bakery worker tasks as including: “[r]ead[ing] production schedule
or receiv[ing] instructions regarding bakery products that require filling and
icing”). The ALJ’s failure to resolve this apparent conflict “precludes us from
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determining whether the ALJ’s decision is supported by substantial evidence.”
Zavalin, 778 F.3d at 846; see also Pinto v. Massanari, 249 F.3d 840, 846, 848 (9th
Cir. 2001) (noting that “[t]he ability to communicate is an important skill to be
considered when determining what jobs are available to a claimant” and remanding
to the ALJ to clarify how the claimant’s “language skills factor into the disability
determination”).
Contrary to the Commissioner’s contention, the ALJ’s error is not harmless.
An error is harmless “when it is clear from the record that the ALJ’s error was
inconsequential to the ultimate nondisability determination.” Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal quotation marks and citation
omitted). Here, the error is harmless if the remaining occupation De Rivera can
perform – fish scaling machine operator – exists in significant numbers either
regionally or nationally. Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523-24
(9th Cir. 2014); see also 42 U.S.C. § 1382c(a)(3)(B). The VE testified that there
were approximately 500 such jobs in California, and 5,000 jobs nationally.
Although “we have never set out a bright-line rule for what constitutes a
‘significant number’ of jobs,” it is not clear that these amounts are sufficient.
Gutierrez, 740 F.3d at 528-29 (upholding ALJ’s finding that 25,000 national jobs
was significant, but noting that it was a “close call”); see also Beltran v. Astrue,
700 F.3d 386, 389-90 (9th Cir. 2012) (holding that 135 regional jobs and 1,680
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national jobs were not significant). Therefore, we cannot “confidently conclude”
that the ALJ’s error was harmless. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir.
2015) (citation omitted).
Accordingly, we reverse and remand to the district court with instructions to
remand to the ALJ for further proceedings. On remand, the ALJ should:
(1) reconcile the identified inconsistency regarding De Rivera’s ability to perform
the conveyor line bakery worker position; and/or (2) determine, in the first
instance, whether the job numbers for the fish scaling machine operator position
are significant.
REVERSED AND REMANDED.
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