Fabio Randazzo v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2017
• Docket: 16-55907
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2017

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FABIO C. RANDAZZO, No. 16-55907

Plaintiff-Appellant, D.C. No. 5:15-cv-00443-SP

v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Sheri Pym, Magistrate Judge, Presiding

Submitted November 30, 2017**

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

Fabio C. Randazzo appeals the district court’s decision 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 we review de

* 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). novo. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). We reverse

and remand.

At step five of the sequential analysis, the administrative law judge (“ALJ”)

erred in relying on the vocational expert’s testimony that Randazzo could perform

light work as a small products assembler even though the ALJ assessed that he did

not have the residual functional capacity to perform “highly fast-paced work, such

as rapid assembly line work.” There was an apparent conflict between the

vocational expert’s testimony and the Dictionary of Occupations Titles (“DOT”),

which states that the occupation of small parts assembler requires the worker to

perform “repetitive tasks on [an] assembly line to mass produce small products.”

DOT 706.684-022. See Gutierrez v. Colvin, 844 F.3d 804, 807-09 (9th Cir. 2016).

As the district court concluded, it is not clear from the DOT’s description whether

the work of a small products assembler is fast-paced or rapid, and, as a matter of

common experience, most people would think of assembly-line work as fast-paced.

See Lamear v. Berryhill, 865 F.3d 1201, 1205-06 (9th Cir. 2017) (relying on

common experience and finding apparent conflict between DOT and vocational

expert’s opinion). The ALJ therefore erred in failing to ask the expert to resolve

the conflict. See Gutierrez, 844 F.3d at 807-09.

Randazzo did not waive the issue of the apparent conflict by failing to raise

it before the ALJ, who had an affirmative duty to inquire about any apparent

conflict between the vocational expert’s testimony and the DOT. See Lamear, 865

2 F.3d at 1206; cf. Shaibi v. Berryhill, 870 F.3d 874, 881-83 (9th Cir. 2017) (holding

that claimant waived challenge to VE’s job-number estimates when ALJ had no

duty to sua sponte take administrative notice of certain job-number data).

The ALJ properly relied on the vocational expert’s testimony that Randazzo

could perform work as an electrical accessories assembler even though the ALJ

assessed that he had the residual functional capacity to perform “low stress” jobs

requiring only occasional decision making or occasional changes in the work

setting. The DOT’s description of this occupation lists multiple varied tasks, but it

does not include the requirement that the worker perform all of the tasks listed, or

frequently change work settings. See Gutierrez, 844 F.3d at 807-08 (explaining

that DOT’s definition of an occupation is a collective description of numerous

jobs). There was also no apparent conflict between the DOT’s description of the

two assembler occupations and the expert’s testimony based on a standing and

walking limitation because the expert specifically reduced the job numbers to

account for this limitation. See Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir.

2015) (holding that ALJ relies on expertise of vocational experts at step five).

The ALJ’s error in relying on the vocational expert’s testimony regarding

the occupation of small products assembler was not harmless because the

remaining 10,000 electrical accessories assembler jobs found by the expert may

not amount to a significant number of jobs in the national economy. See 42 U.S.C.

§ 1382c(a)(3)(B) (providing that claimant is not disabled if he can perform “work

3 which exists in significant numbers either in the region where [he] lives or in

several regions of the country”); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519,

528-29 (9th Cir. 2014) (holding that 25,000 jobs in the national economy presented

a close call but was sufficient). The vocational expert also testified that there were

550 electronic accessories assembler jobs in the region, but he did not explain

whether the region meant the State of California or a smaller, more local area, and

the ALJ made no finding regarding the regional job numbers. Cf. id. at 526-27

(upholding ALJ’s finding that State of California was relevant region and that

2,500 was a significant number of jobs for that region); Beltran v. Astrue, 700 F.3d

386, 389-90 (9th Cir. 2012) (holding that 135 jobs in Greater Metropolitan Los

Angeles and Orange County area was not a significant number). The record does

not show that the ALJ’s error was inconsequential to the ultimate nondisability

determination, and thus harmless. See Brown-Hunter, 806 F.3d at 492. We

therefore reverse the district court’s judgment and remand to permit the ALJ to

follow up with the vocational expert. See Lamear, 865 F.3d at 1206-07; Gutierrez,

740 F.3d at 527-28 (indicating that whether a significant number of jobs exist in

the country or region is a question of fact properly resolved by an ALJ).

REVERSED and REMANDED.