                                                                              FILED
                               NOT FOR PUBLICATION                            MAY 04 2011

                                                                          MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


J. MANUEL RICO CHAVEZ,                             No. 10-15076

             Plaintiff-Appellant,                  D.C. No. 1:08-cv-01323 DLB

  v.
                                                   MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant-Appellee.

                       Appeal from the United States District Court
                          for the Eastern District of California
                       Dennis L. Beck, Magistrate Judge, Presiding

                                Submitted April 15, 2011**
                                   Pasadena, California

Before: STEPHEN REINHARDT, Circuit Judge, RONALD M. GOULD, Circuit
Judge, and ROBERT J. TIMLIN,*** Senior District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
      J. Manuel Rico Chavez (“Chavez”) appeals the district court’s order denying

his appeal of a final decision of the Commissioner of Social Security

(“Commissioner”) denying Chavez’s applications for disability insurance benefits

and supplemental security income pursuant to Titles II and XVI of the Social

Security Act. Chavez contends on appeal that the administrative law judge

(“ALJ”) committed legal error by failing to resolve a conflict between the

vocational expert’s (“VE”) testimony and the Dictionary of Occupational Titles

(“DOT”) prior to relying on the VE’s testimony to make a determination that

Chavez could perform other work after December 2004. The Commissioner

concedes on appeal that the ALJ erred by not expressly asking the VE whether her

testimony was in conflict with the DOT, but argues that the error was harmless.

      Because the parties are familiar with the facts, we do not recite them in

detail. We review a district court’s order upholding the Commissioner’s denial of

benefits de novo. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). We hold

that, as the Commissioner rightly conceded, the ALJ committed legal error when

he failed to ascertain from the VE whether a conflict existed between the DOT and

the occupations identified by the VE as available to Chavez and within his residual

functional capacity and, if there were unresolved potential inconsistencies in the

evidence, to request the VE provide a reasonable explanation for that conflict. See


                                          2
Social Security Ruling 00-4p. If there was a conflict, the ALJ was legally

obligated to resolve it. See Massachi, 486 F.3d at 1153. Because a conflict did in

fact exist between the DOT definitions of the identified occupations and the VE’s

testimony on that subject and the record does not provide a clear, unambiguous

explanation for such conflict, the ALJ’s error was not harmless.

      We therefore reverse the district court with directions that it remand this

case to the Commissioner for further administrative proceedings under 42 U.S.C. §

405(g). At those proceedings, the Commissioner shall inquire of the VE about the

conflict between the occupations identified by the VE and the DOT definitions of

the identified occupations and assess whether the VE’s explanation for the conflict

is reasonable and may be relied on. See Massachi, 486 F.3d at 1153.

      REVERSED AND REMANDED.




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