NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YOLANDA RUIZ DE RIVERA, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 16-55884 

D.C. No. 2:15-cv-04625-DFM 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Douglas F. McCormick, Magistrate Judge, Presiding

Submitted February 5, 2018**

Pasadena, California

Before: W. FLETCHER, BERZON, and OWENS, Circuit Judges.

Yolanda Ruiz De Rivera appeals from the district court’s judgment 

affirming the Commissioner of Social Security’s denial of her applications for 

disability insurance benefits and supplemental security income under Titles II and 

 

* 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).

FILED

FEB 8 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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XVI of the Social Security Act. We review the district court’s decision de novo, 

and the Commissioner’s denial of benefits must be supported by substantial 

evidence and a correct application of the law. Valentine v. Comm’r Soc. Sec. 

Admin., 574 F.3d 685, 690 (9th Cir. 2009). As the parties are familiar with the 

facts, we do not recount them here. We reverse and remand.

This appeal concerns step five of the sequential evaluation process, where 

the Commissioner bears the burden to identify specific jobs existing in significant 

numbers that a claimant can perform despite her identified limitations. See Zavalin 

v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). The Administrative Law Judge 

(“ALJ”) found that De Rivera could perform two jobs: (1) conveyor line bakery 

worker; and (2) fish scaling machine operator.

Substantial evidence does not support the ALJ’s finding that De Rivera was 

capable of performing the conveyor line bakery worker job. The ALJ found that 

De Rivera cannot read English, but failed to address the vocational expert’s (“VE”) 

concession that the bakery job may require reading English. The job description in 

the Dictionary of Occupational Titles (“DOT”) also indicates that this position may 

require reading. See DOT 524.687-022 (4th ed. 1991), 1991 WL 674401 (listing 

conveyor line bakery worker tasks as including: “[r]ead[ing] production schedule 

or receiv[ing] instructions regarding bakery products that require filling and 

icing”). The ALJ’s failure to resolve this apparent conflict “precludes us from 
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determining whether the ALJ’s decision is supported by substantial evidence.” 

Zavalin, 778 F.3d at 846; see also Pinto v. Massanari, 249 F.3d 840, 846, 848 (9th 

Cir. 2001) (noting that “[t]he ability to communicate is an important skill to be 

considered when determining what jobs are available to a claimant” and remanding 

to the ALJ to clarify how the claimant’s “language skills factor into the disability 

determination”).

Contrary to the Commissioner’s contention, the ALJ’s error is not harmless. 

An error is harmless “when it is clear from the record that the ALJ’s error was 

inconsequential to the ultimate nondisability determination.” Tommasetti v. 

Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal quotation marks and citation 

omitted). Here, the error is harmless if the remaining occupation De Rivera can 

perform – fish scaling machine operator – exists in significant numbers either 

regionally or nationally. Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523-24 

(9th Cir. 2014); see also 42 U.S.C. § 1382c(a)(3)(B). The VE testified that there 

were approximately 500 such jobs in California, and 5,000 jobs nationally. 

Although “we have never set out a bright-line rule for what constitutes a 

‘significant number’ of jobs,” it is not clear that these amounts are sufficient. 

Gutierrez, 740 F.3d at 528-29 (upholding ALJ’s finding that 25,000 national jobs 

was significant, but noting that it was a “close call”); see also Beltran v. Astrue, 

700 F.3d 386, 389-90 (9th Cir. 2012) (holding that 135 regional jobs and 1,680 
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national jobs were not significant). Therefore, we cannot “confidently conclude”

that the ALJ’s error was harmless. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 

2015) (citation omitted). 

Accordingly, we reverse and remand to the district court with instructions to 

remand to the ALJ for further proceedings. On remand, the ALJ should: 

(1) reconcile the identified inconsistency regarding De Rivera’s ability to perform 

the conveyor line bakery worker position; and/or (2) determine, in the first 

instance, whether the job numbers for the fish scaling machine operator position 

are significant.

REVERSED AND REMANDED.