                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 20 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GRISELDA FARIAS,                                 No. 11-57088

              Plaintiff - Appellant,             D.C. No. 2:11-cv-01170-FFM

       v.
                                                 MEMORANDUM *
CAROLYN W. COLVIN, Acting
Commissionner of Social Security,**

              Defendant - Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                 Frederick F. Mumm, Magistrate Judge, Presiding

                        Argued and Submitted May 10, 2013
                               Pasadena, California

Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, District
        Judge.***




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

      **
        Carolyn Colvin is substituted for her predecessor, Michael Astrue, as
Acting Commissioner of the Social Security Administration. Fed R. App. P.
43(c)(2).
       ***
          The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.
      Griselda Farias appeals the district court’s order upholding the

Commissioner’s denial of disability insurance benefits and supplemental security

income benefits. We vacate the district court’s order and remand for further

proceedings consistent with this disposition.

      1. The ALJ erred by failing to inquire whether the vocational expert’s (VE)

testimony regarding the job requirements for ticket taker (DOT 344.667-010), copy

messenger (DOT code 239.677-010) and hostess (DOT code 349.677-014)

conflicts with the Dictionary of Occupation Titles (DOT). SSR 00–4p, 2000 WL

1898704 (Dec. 4, 2000). See Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th

Cir.2007). The ALJ’s error was not harmless as to the occupations of ticket taker

and copy messenger because the VE’s testimony that these jobs “have occasional

handling requirements but no fingering requirements” conflicts with the DOT.

Under the DOT’s definitions, the job of ticket taker has frequent handling and

occasional fingering requirements, see Dictionary of Occupational Titles

344.667-010, available at 1991 WL 672863, and the job of copy messenger

requires frequent handling, see Dictionary of Occupational Titles 239.677-010,

available at 1991 WL 672233. Because the ALJ failed to inquire about these

material conflicts, we cannot determine whether substantial evidence supports the




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ALJ’s findings as to the occupations of ticket taker and copy messenger. See

Massachi, 486 F.3d at 1153-54.

       2. No “reasonable mind” could accept the employment numbers proffered

by the VE as substantial evidence that someone with Farias’ characteristics and

residual functional capacity (RFC) could perform the job of hostess (DOT

349.667-014). See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). DOT

349.667-014 corresponds to the occupation of a head host/hostess of a dance hall,

who:

       Introduces unaccompanied persons at dancehall to
       HOSTS/HOSTESSES, DANCE HALL (amuse. & rec.), explaining
       procedure of engaging social partner.         Inspects dress of
       HOSTS/HOSTESSES, DANCE HALL (amuse. & rec.) to ensure that
       they present clean and pleasing personal appearance. Attempts to
       distribute patrons equally among HOSTS/ HOSTESSES, DANCE
       HALL (amuse. & rec.).

Dictionary of Occupational Titles 349.667-014, available at 1991 WL 672884.

       A reasonable mind would not accept the VE’s testimony that there are 3,600

head dance hall hostess positions in the local economy and 342,000 in the national

economy. The most plausible explanation appears to be that the VE properly

testified that a person with Farias’ characteristics and RFC could perform the job

requirements of head dance hall hostess but erroneously provided employment data

for restaurant hostess – an occupation that exists in far larger numbers. Notably,


                                          3
the employment numbers reported by the Bureau of Labor Statistics for the

occupation of restaurant host/hostess are very similar to the numbers the VE

proffered for the job of head dance hall hostess. See Hosts and Hostesses,

Restaurant, Lounge, and Coffee Shop, Bureau of Labor Statistics,

http://www.bls.gov/oes/current/oes359031.htm (341,400 such jobs exist nationally

based on the most current BLS data); News, Bureau of Labor Statistics (May 1,

2009), http://www.bls.gov/news.release/archives/ocwage_05012009.pdf (349,990

such jobs existed nationally in 2008). The ALJ’s conclusion is therefore not

supported by substantial evidence – “such relevant evidence as a reasonable mind

might accept as adequate to support [the ALJ’s] conclusion.” Orn v. Astrue, 495

F.3d 625, 630 (9th Cir. 2007).

      Accordingly, we vacate the decision of the district court and remand with

instructions to remand to the Commissioner for further consideration and

testimony concerning the types of jobs that Farias could perform and the numbers

of those positions that exist in the economy.

      VACATED and REMANDED.




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