                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ESHAGH MASSACHI,                       
                Plaintiff-Appellant,
                                             No. 05-55201
                 v.
MICHAEL J. ASTRUE, Commissioner               D.C. No.
                                           CV-04-00044-VBK
of the Social Security
                                              OPINION
Administration,
               Defendant-Appellee.
                                       
       Appeal from the United States District Court
            for the Central District of California
       Victor B. Kenton, Magistrate Judge, Presiding

                 Argued and Submitted
           March 9, 2007—Pasadena, California

                    Filed May 11, 2007

      Before: Thomas G. Nelson, Susan P. Graber, and
              Sandra S. Ikuta, Circuit Judges.

               Opinion by Judge T.G. Nelson




                            5579
5582                 MASSACHI v. ASTRUE


                         COUNSEL

Stephanie M. Simpson, Northridge, California, for the
plaintiff-appellant.

Armand Roth, Assistant United States Attorney, and Eric
K.H. Chinn, Special Assistant United States Attorney, San
Francisco, California, for the defendant-appellee.


                         OPINION

T.G. NELSON, Circuit Judge:

   Eshagh Massachi appeals the district court’s grant of sum-
mary judgment upholding the Commissioner of Social Securi-
ty’s denial of Supplemental Security Income (“SSI”) benefits.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm
in part and vacate and remand in part.

   We must decide for the first time whether, in light of the
requirements of Social Security Ruling (“SSR”) 00-4p, an
administrative law judge (“ALJ”) may rely on the testimony
of a vocational expert regarding the requirements of a particu-
lar job without first inquiring whether that expert’s testimony
conflicts with the Dictionary of Occupational Titles. Consis-
tent with other circuits that have considered this question, we
hold that an ALJ may not.
                          MASSACHI v. ASTRUE                          5583
I.       Background

   Massachi filed for SSI disability benefits in 1996 based on
depression and other problems. In the final step of the five-
step inquiry to determine disability,1 the ALJ found that Mas-
sachi was not disabled within the meaning of the Social
Security Act because he could adjust to other work. The ALJ
also assessed Massachi’s residual functional capacity2 and
found that Massachi “often” suffered from deficiencies of
concentration, persistence, or pace resulting in failure to com-
plete tasks in a timely manner. The ALJ relied on the reports
of two psychiatrists and the testimony of a vocational expert.

   Both Marat Pushin, M.D., and Sohini Parikh, M.D., Mas-
sachi’s psychiatrists, diagnosed Massachi with major depres-
sion. Both also found that Massachi’s ability to understand,
remember, and carry out simple one or two-step instructions
was intact. Dr. Pushin found that Massachi’s ability to under-
stand, remember, and carry out extensive or complex instruc-
tions was impaired and that his ability to maintain
concentration and attention throughout the interview was
mildly impaired. Dr. Parikh noted that Massachi had a mild
to moderate impairment in his ability to reason and to make
social, occupational, and personal adjustments, but opined
that he should be able to interact appropriately with peers. Dr.
Parikh concluded that Massachi would not be able to respond
appropriately to the usual work settings in such matters as
attendance and would have a hard time adjusting to changes
in the work routine because of his depression and poor con-
centration.
     1
     To determine whether or not a claimant is disabled, the ALJ follows
a five-step evaluation. See 20 C.F.R. § 416.920(a)(4). If the ALJ finds that
a claimant is either disabled or not disabled at any step, the ALJ does not
continue on to the next step. Id.; see also Parra v. Astrue, 481 F.3d 742,
746-47 (9th Cir. 2007) (discussing the five-step evaluation in detail).
   2
     Between steps three and four of the five-step evaluation, the ALJ must
proceed to an intermediate step in which the ALJ assesses the claimant’s
residual functional capacity. See 20 C.F.R. § 416.920(e).
5584                 MASSACHI v. ASTRUE
   Massachi sought review of the ALJ’s decision and the dis-
trict court remanded the case. It ordered the Appeals Council
to instruct the ALJ to re-evaluate Massachi’s residual func-
tional capacity based on an accurate and complete summary
of the findings of the two psychiatrists and to obtain addi-
tional vocational expert testimony regarding the re-evaluation.
Accordingly, the Appeals Council vacated the ALJ’s original
decision.

   Pursuant to the remand order, the ALJ re-examined Dr.
Pushin’s and Dr. Parikh’s findings and reassessed Massachi’s
residual functional capacity. As part of the new residual func-
tional capacity assessment, the ALJ changed the determina-
tion regarding deficiencies in concentration, persistence, and
pace from “often” to “mild to moderate.”

   On remand, the vocational expert, Lynne Tracy, testified
again. Consistent with the new residual functional capacity
assessment, the ALJ asked Tracy a hypothetical question
about whether an individual of Massachi’s age and education
who was limited to simple tasks because of “mild to moderate
impairment in his ability to reason, concentrate, make social
adjustments and personal adjustments” would be able to per-
form Massachi’s past work in metallurgy. Tracy responded
that he would not, but that someone fitting such a description
could perform entry-level work such as janitorial or cleaning
jobs. Moreover, such work was available in the relevant local-
ity (the greater Los Angeles area). When Massachi’s attorney
added to the hypothetical that the individual “often suffered
from deficiencies of concentration, persistence and pace,”
Tracy testified that the individual would be incapable of
working, even if “often” only meant up to one-third of the
day. The ALJ did not ask Tracy whether her testimony was
consistent with the Dictionary of Occupational Titles.

   At step five of the analysis, relying on Tracy’s new testi-
mony, the ALJ again found that Massachi was capable of per-
forming other work. Thus, the ALJ again found that Massachi
                          MASSACHI v. ASTRUE                           5585
was not disabled. Massachi filed a second action in district
court, and the district court entered an order granting sum-
mary judgment to the Commissioner. On appeal, Massachi
contends: 1) that the ALJ erred by relying on the vocational
expert’s testimony; 2) that the ALJ’s residual functional
capacity assessment was not supported by substantial evi-
dence; 3) that the ALJ’s finding at step three of the analysis
was not supported by substantial evidence; and 4) that the
ALJ was not impartial.

II.    Standard of Review

   This court reviews de novo a district court’s order affirm-
ing an ALJ’s decision to deny benefits.3 However, the scope
of our review is limited. We may set aside a denial of benefits
only “if it is not supported by substantial evidence or if it is
based on legal error.”4 “Where the evidence as a whole can
support either” a grant or a denial, “we may not substitute our
judgment for the ALJ’s.”5

III.   Discussion

  A. The ALJ’s reliance on the vocational expert’s
  testimony

  For the first time, we address the question whether, in light
of the requirements of SSR 00-4p,6 an ALJ may rely on a
  3
    Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
  4
    Flaten v. Sec. of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.
1995).
  5
    Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
  6
    Social Security Ruling 00-4p, available at 2000 WL 1898704. “[Social
Security Rulings] reflect the official interpretation of the [Social Security
Administration] and are entitled to ‘some deference’ as long as they are
consistent with the Social Security Act and regulations.” Avenetti v. Barn-
hart, 456 F.3d 1122, 1124 (9th Cir. 2006) (quoting Ukolov v. Barnhart,
420 F.3d 1002, 1005 n.2 (9th Cir. 2005)).
5586                     MASSACHI v. ASTRUE
vocational expert’s testimony regarding the requirements of a
particular job without first inquiring whether the testimony
conflicts with the Dictionary of Occupational Titles. We hold
than an ALJ may not. In so holding, we join the Third, Sev-
enth, and Tenth Circuits.7 We also follow our own precedent.

   [1] SSR 00-4p unambiguously provides that “[w]hen a
[vocational expert] . . . provides evidence about the require-
ments of a job or occupation, the adjudicator has an affirma-
tive responsibility to ask about any possible conflict between
that [vocational expert] . . . evidence and information pro-
vided in the [Dictionary of Occupational Titles].”8 SSR 00-4p
further provides that the adjudicator “will ask” the vocational
expert “if the evidence he or she has provided” is consistent
with the Dictionary of Occupational Titles and obtain a rea-
sonable explanation for any apparent conflict.9

   [2] Our holding in Johnson v. Shalala10 is consistent with
these requirements. In Johnson, which predated SSR 00-4p,
we held that “an ALJ may rely on expert testimony which
contradicts the [Dictionary of Occupational Titles], but only
insofar as the record contains persuasive evidence to support
the deviation.”11 The district court in Johnson was aware that
the vocational expert’s testimony deviated from the Dictio-
nary of Occupational Titles, but justifiably relied on the
expert’s testimony because the expert gave “persuasive testi-
   7
     See Rutherford v. Barnhart, 399 F.3d 546 (3d Cir. 2005); Prochaska
v. Barnhart, 454 F.3d 731 (7th Cir. 2006); Hackett v. Barnhart, 395 F.3d
1168 (10th Cir. 2005).
   8
     SSR 00-4p at *4 (emphasis added). The Social Security Administration
has taken administrative notice of the Dictionary of Occupational Titles,
which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs. See 20 C.F.R. § 416.966(d)(1);
Prochaska, 454 F.3d at 735 n.1.
   9
     SSR 00-4p at *4 (emphasis added).
   10
      60 F.3d 1428, 1435 (9th Cir. 1995).
   11
      Id.
                        MASSACHI v. ASTRUE                        5587
mony of available job categories in the local rather than the
national market, and testimony matching the specific require-
ments of a designated occupation with the specific abilities
and limitations of the claimant.”12 As a result, the vocational
expert’s testimony left no “unresolved potential inconsistenc-
[ies] in the evidence.”13 SSR 00-4p simply goes one step fur-
ther, explicitly requiring that the ALJ determine whether the
expert’s testimony deviates from the Dictionary of Occupa-
tional Titles and whether there is a reasonable explanation for
any deviation.

   [3] The procedural requirements of SSR 00-4p ensure that
the record is clear as to why an ALJ relied on a vocational
expert’s testimony, particularly in cases where the expert’s
testimony conflicts with the Dictionary of Occupational
Titles. In making disability determinations, the Social Secur-
ity Administration relies primarily on the Dictionary of Occu-
pational Titles for “information about the requirements of
work in the national economy.”14 The Social Security Admin-
istration also uses testimony from vocational experts to obtain
occupational evidence.15 Although evidence provided by a
vocational expert “generally should be consistent” with the
Dictionary of Occupational Titles, “[n]either the [Dictionary
of Occupational Titles] nor the [vocational expert] . . . evi-
dence automatically ‘trumps’ when there is a conflict.”16
Thus, the ALJ must first determine whether a conflict exists.
If it does, the ALJ must then determine whether the voca-
tional expert’s explanation for the conflict is reasonable and
whether a basis exists for relying on the expert rather than the
Dictionary of Occupational Titles.17
  12
     Id.
  13
     Prochaska, 454 F.3d at 736.
  14
     SSR 00-4p at *2.
  15
     Id.
  16
     Id.
  17
     Id. SSR 00-4p gives examples of several reasonable explanations for
deviating from the Dictionary. Among them are that the Dictionary does
5588                      MASSACHI v. ASTRUE
   [4] Here, the ALJ did not ask the vocational expert whether
her testimony conflicted with the Dictionary of Occupational
Titles18 and, if so, whether there was a reasonable explanation
for the conflict.19 Thus, we cannot determine whether the ALJ
properly relied on her testimony.20 As a result, we cannot
determine whether substantial evidence supports the ALJ’s
step-five finding that Massachi could perform other work.
Accordingly, we vacate in part the district court’s summary
judgment upholding the Commissioner’s decision and instruct
the district court to remand this case so that the ALJ can per-
form the appropriate inquiries under SSR 00-4p.

  B.    The ALJ’s residual functional capacity finding

   [5] Massachi also argues that the ALJ was not free on
remand to change the residual functional capacity finding and
that the ALJ’s new finding was error. He is incorrect. Pursu-
ant to the district court’s order, the Appeals Council vacated
the ALJ’s original decision and specifically instructed the
ALJ to reassess Massachi’s residual functional capacity.

not provide information about all occupations, information about a partic-
ular job not listed in the Dictionary may be available elsewhere, and the
general descriptions in the Dictionary may not apply to specific situations.
Id. at **2-3.
   18
      Although the vocational expert was not providing evidence about the
“requirements of a job” by saying that Massachi was qualified for certain
jobs in response to the ALJ’s hypothetical question, she was indirectly
providing such evidence. See SSR 00-4p at *4 (stating that an ALJ must
inquire whether a vocational expert’s testimony regarding “the require-
ments of a job or occupation” conflicts with the Dictionary of Occupa-
tional Titles).
   19
      This procedural error could have been harmless, were there no con-
flict, or if the vocational expert had provided sufficient support for her
conclusion so as to justify any potential conflicts, as in Johnson. Instead,
we have an apparent conflict with no basis for the vocational expert’s
deviation.
   20
      See Prochaska, 454 F.3d at 736 (holding that an ALJ’s failure to make
the relevant inquiries under SSR 00-4p leaves “unresolved potential incon-
sistenc[ies] in the evidence”).
                          MASSACHI v. ASTRUE                          5589
Thus, on remand, the ALJ’s original finding no longer existed.21
Moreover, substantial evidence supported the ALJ’s new find-
ing that Massachi suffered from “mild to moderate” deficien-
cies.

   [6] Even if we assume that Dr. Parikh’s report did not sup-
port the ALJ’s new finding, the ALJ was free to credit Dr.
Pushin’s report over Dr. Parikh’s report.22 Dr. Pushin’s report
clearly indicates that deficiencies in Massachi’s concentration
and overall functioning were mild. Therefore, we hold that
substantial evidence supports the ALJ’s finding that Massachi
suffered from “mild to moderate” deficiencies in concentra-
tion, persistence, or pace.

  C.    The ALJ’s Step-Three Finding

   For the first time on appeal, Massachi argues that the ALJ
erred in step three of his disability determination by not find-
ing that Massachi had an impairment that met or equaled the
criteria of a statutorily listed impairment. We decline to con-
sider this issue.23 At the district court level, Massachi raised
only problems with the fifth step of the ALJ’s analysis, not
with the third step. Further, Massachi points to no evidence in
the record sufficient to prove this claim.
  21
    BLACK’S LAW DICTIONARY 1584 (8th ed. 2004) (defining “vacate” as
“to nullify or cancel; to make void”).
  22
    See Key, 754 F.2d at 1549 (noting that when the evidence can support
either outcome, we may not substitute our judgment for the ALJ’s).
  23
    See Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Because
the record does not support Massachi’s claim that the ALJ erred in step
three, our failure to consider this new issue will not result in a “manifest
injustice.” See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (hold-
ing that this court will address an issue not raised by the claimant below
only if the failure to do so would result in a “manifest injustice”).
5590                      MASSACHI v. ASTRUE
  D.      The ALJ’s Impartiality

  Massachi also contends for the first time on appeal that the
ALJ was not an impartial adjudicator. He points to no evi-
dence in the record sufficient to prove this claim, either.
Accordingly, we decline to consider it.24

IV.     Conclusion

   Substantial evidence does not support the ALJ’s step-five
inquiry. We remand this case in part so that the ALJ can apply
SSR 00-4p’s requirements and determine: 1) whether the jobs
identified by the vocational expert are consistent with the def-
initions in the Dictionary of Occupational Titles and Mas-
sachi’s limitations; and 2) whether there is a reasonable
explanation for any inconsistencies between the vocational
expert’s testimony and the Dictionary of Occupational Titles.

  Substantial evidence supported the ALJ’s finding that Mas-
sachi’s deficiencies in concentration, persistence, or pace
were “mild to moderate.” We decline to address Massachi’s
other arguments because he did not raise them below.

  Accordingly, we AFFIRM in part and VACATE and
REMAND in part to the district court with instructions to
remand to the Social Security Administration for further
administrative proceedings consistent with this opinion. Costs
on appeal are awarded to Appellant.




  24
      See Meanel, 172 F.3d at 1115.
