                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            AUG 25 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
EDWARD TESTER,                                   No. 14-35210

              Plaintiff - Appellant,             D.C. No. 3:12-cv-01313-HU

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                         Argued and Submitted July 9, 2015
                                 Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

       Edward Tester appeals the district court’s order affirming the decision of the

Commissioner of Social Security denying Tester’s application for benefits. We

have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and vacate the

district court’s judgment and remand.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The Administrative Law Judge (“ALJ”) employed the five-step analysis to

determine whether Tester was disabled.1 In the course of applying that analysis,

the ALJ determined that Tester had a residual functional capacity (“RFC”) for

“simple, 1-2 step work.” The ALJ heard testimony from a vocational expert

(“VE”) that a person with Tester’s RFC could perform work as a cannery worker

or mail clerk. Accordingly, the ALJ found that there were jobs Tester could

perform despite his limitations and that therefore he was not disabled.

      Tester argues that the ALJ erred, because there is an apparent conflict

between the ALJ’s testimony and the Dictionary of Occupational Titles (“DOT”).

One element of the definitional trailer attached to a job in the DOT is the General

Education Development Reasoning Levels. DOT, App. C (4th ed. 1991). At

Reasoning Level 1, a worker is required to “[a]pply commonsense understanding

to carry out simple one- to two-step instructions. Deal with standardized situations

with occasional or no variables in or from these situations encountered on the job.”

Id. By contrast, a worker at Reasoning Level 2 is required to “[a]pply

commonsense understanding to carry out detailed but uninvolved written or oral



      1
      The Social Security regulations prescribe a five-step evaluation to
determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520,
416.920(a)(4) (2015). We explained the five-step evaluation in detail in
Bustamante v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001).

                                         -2-
instructions. Deal with problems involving a few concrete variables in or from

standardized situations.” Id. The jobs that the VE identified Tester could perform

required Reasoning Level 2 or higher. Tester contends that his RFC for “simple, 1-

2 step work” is in apparent conflict with Reasoning Level 2, and that he is limited

to Reasoning Level 1 work. The district court disagreed and held that there was no

apparent conflict.

      We review a district court’s order affirming an ALJ’s decision denying

social security benefits de novo. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir.

2015). “We review the Commissioner’s disability decision ‘to determine if it is

supported by substantial evidence in the record as a whole and whether it is based

on proper legal standards.’” Id. (quoting Nyman v. Heckler, 779 F.2d 528, 530

(9th Cir. 1986)).

      “When a VE . . . provides evidence about the requirements of a job or

occupation, the adjudicator has an affirmative responsibility to ask about any

possible conflict between that . . . evidence and information provided in the DOT.”

SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (“SSR 00-4p”). Neither the

VE’s testimony nor the DOT trumps the other; if there is a conflict between them,

the ALJ must resolve the conflict before he can rely on the VE’s testimony to

determine that a claimant is or is not disabled. Id. at *2. We have interpreted SSR


                                         -3-
00-4p as “explicitly requiring that the ALJ determine whether the expert’s

testimony deviates from the Dictionary of Occupational Titles and whether there is

a reasonable explanation for any deviation.” Massachi v. Astrue, 486 F.3d 1149,

1153 (9th Cir. 2007). There is no dispute that the ALJ failed to recognize or

resolve any apparent conflict in this case.2

      Tester primarily contends that, because the language in his RFC closely

tracks the language in Reasoning Level 1, a limitation to “simple, 1-2 step work” is

inconsistent with the requirements of Reasoning Level 2. Recently, we decided a

similar issue in Rounds v. Commissioner of Social Security, No. 13-5505 (9th Cir.

August 4, 2015). In Rounds, we relied on Zavalin v. Colvin to hold that an RFC

for “one to two step tasks” was in apparent conflict with “the demands of Level

Two reasoning, which requires a person to ‘apply commonsense understanding to

carry out detailed but uninvolved written or oral instructions.’” Rounds, slip op. at

11–13 (alteration omitted). Because there was an apparent conflict that the ALJ

did not address, the court could not determine whether the ALJ’s decision was




      2
        The Commissioner’s argument that the ALJ was entitled to rely on the VE’s
response that there was no conflict is unavailing. ALJs have an affirmative
responsibility to resolve apparent conflicts, see SSR 00-4p, and a VE’s answer that
there is no conflict does not eliminate that duty where, as here, the record evinces a
potential conflict.

                                          -4-
supported by substantial evidence. Id. at 13. Accordingly, remand was required

for the ALJ to resolve the conflict. Id. at 14.

      Tester’s case is indistinguishable from Rounds. Tester’s RFC also included

a limitation for “1-2 step work.” The addition of the restriction that Tester be

limited to “simple, 1-2 step work” reinforces the conclusion compelled by Rounds

that Tester’s RFC is in apparent conflict with Reasoning Level 2. Therefore, the

ALJ erred by not resolving this conflict and was not entitled to rely on the VE’s

testimony when determining whether Tester was disabled at step 5.

      Even though the ALJ erred by failing to resolve a conflict, we do not remand

if the error were harmless. See Massachi, 486 F.3d at 1154 n.19. The

Commissioner asserts that the error was harmless, because Tester had previously

performed Reasoning Level 2 work and substantial evidence indicated he could

still perform that work. We disagree. The Commissioner fails to give any

significance to the evidence in the record that Tester’s capacity had diminished

since his previous employment. Tester asserted that he left his prior job, because

his condition was deteriorating. He feared that the increased pain, and the

medication he needed to take to manage it, impaired his focus and his vision such

that he would be a danger to himself or others. In essence, Tester asserted that he

could no longer perform Reasoning Level 2 work. We also find important to this


                                          -5-
analysis that Tester had a tenth grade education and took special education classes.

We are left with a grave doubt on the record before us that Tester can perform

Reasoning Level 2 work.

      Accordingly, we vacate the district court’s order and remand for further

proceedings consistent with this opinion.

      Costs to be awarded to Tester.

      VACATED AND REMANDED.




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