JESUS OROZCO V. KILOLO KIJAKAZI ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS VACA OROZCO, No. 21-56263
Plaintiff-Appellant, D.C. No. 2:20-cv-05536-VEB
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Victor E. Bianchini, Magistrate Judge, Presiding
Argued and Submitted November 14, 2022
Pasadena, California
Before: WARDLAW and W. FLETCHER, Circuit Judges, and KORMAN,**
District Judge.
Jesus Vaca Orozco (Orozco) appeals from the district court’s decision and
order affirming the Commissioner of Social Security’s (the “Commissioner”)
denial of his application for disability insurance benefits under Title II of the Social
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Security Act. See 42 U.S.C. § 405(g). Orozco alleged disability because of his
depression, and back, knee, and shoulder injuries. The district court had
jurisdiction under 42 U.S.C. § 405(g), and we have jurisdiction under 28 U.S.C. §
1291. For the reasons set forth below, we vacate and remand.
We review the district court’s affirmance of the Administrative Law Judge’s
(“ALJ”) decision de novo, and “will disturb the denial of benefits only if the
decision contains legal error or is not supported by substantial evidence.”
Kilpatrick v. Kijakazi, 35 F.4d 1187, 1192 (9th Cir. 2022) (quoting Lambert v.
Saul, 980 F.3d 1266, 1270 (9th Cir. 2020)). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
White v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022) (quoting Biestek v. Berryhill,
139 S. Ct. 1148, 1154 (2019)).
A claimant is disabled under Title II of the Social Security Act if he is
unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or ... can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). To determine whether a claimant meets this
definition, the ALJ conducts the five-step sequential evaluation provided in 20
C.F.R. § 404.1520(a)(4). See Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
At issue here is the fifth step, namely whether the impairment from which the
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claimant suffers also prevents him from performing “any other substantially
gainful activity.” Id. The Commissioner bears the burden of showing “that the
claimant can perform other substantial gainful work.” Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005).
The ALJ found, based on the testimony of a vocational expert, that the
following jobs exist in significant numbers in the national economy that Orozco
could perform, despite his disability: production line assembler (71,255 jobs),
electrical assembler (88,034 jobs), and wafer line worker (37,000 jobs). With
respect to the number of production line assembler jobs, the vocational expert
testified that her estimate was derived from Job Browser Pro,1 but the vocational
expert’s testimony does not reconcile the difference between that number and the
estimate of 5,571 production line assembler jobs provided by the Dictionary of
Occupational Titles (“DOT”) that the vocational expert referenced on cross-
examination. The ALJ erred in relying on the vocational expert testimony without
reconciling this difference. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir.
2017) (“[A]n ALJ is required to investigate and resolve any apparent conflict
between the [vocational expert’s] testimony and the DOT.”).
The ALJ’s decision also did not fully or clearly explain how the vocational
1
Job Browser Pro is a software program that provides vocational data.
3 21-56263
expert’s estimates of electrical assembler and wafer line worker jobs—both part of
the occupational group of “Electrical and Electronic Equipment Assemblers”—
were impacted by literacy requirements or education requirements (such as a high
school diploma) that Orozco raised in rebuttal evidence. In his rebuttal evidence,
Orozco cited to a 2018 data set of the Occupational Requirements Survey
(“ORS”)2 which notes that only 26.7% of jobs in the Electrical and Electronic
Equipment Assemblers occupational group do not have a minimum educational
requirement, and of that 26.7%, all require literacy. In response, the ALJ’s
decision merely states that this “data does not indicate how many of the 26.7% of
jobs that can be performed with no minimum amount of education also require
literacy.” This does not resolve the conflict raised by Orozco’s argument, based on
the ORS, that all of the jobs in this 26.7% require literacy.3 See Lambert v. Saul,
980 F.3d 1266, 1277 (9th Cir. 2020) (noting that the ALJ is responsible for
determining credibility, resolving conflicts in testimony, and resolving ambiguities
in the record).
2
The ORS is prepared by the Bureau of Labor Statistics and “provides job-related
information regarding physical demands; environmental conditions; education,
training, and experience; as well as cognitive and mental requirements for jobs in
the U.S. economy.” See U.S. Bureau of Labor Statistics, Occupational
Requirements Survey, https://www.bls.gov/ors/.
3
The remaining 73.3% of the jobs in the Electrical and Electronic Equipment
Assemblers occupational group do not require literacy, but require a high school
education, which Orozco does not have.
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In light of these discrepancies in the number of jobs available to Orozco in
the national economy in these three job categories, remand is appropriate here to
allow the ALJ to address the evidence and Orozco’s challenge to the vocational
expert’s job-number estimates. See White, 44 F.4th at 837. We express no view
on the merits of Orozco’s remaining arguments.
VACATED AND REMANDED.
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