                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 4 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRANDON DEWOLFE,                                No.    17-35574

                Plaintiff-Appellant,            No. 6:16-cv-00543-BR

 v.                                             MEMORANDUM*

NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   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).
§ 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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