Ninth Circuit Reverses BRB and ALJ's Evidence Interpretation

In a relatively unusual decision, a panel of the U.S. Ninth Circuit Court of Appeals reversed the Administrative Law Judge and the Benefits Review Board solely on its interpretation of the testimony of the employer’s vocational expert. 
 
Admittedly, both the ALJ and the Board struggled with the vocational expert’s testimony, but ultimately concluded that the evidence demonstrated that the claimant could obtain work as a tower clerk.  The ALJ originally held that the proof of the availability of this job was speculative, but he reversed himself and found the job reasonably available at least three days a week.  The Board upheld this determination in a split decision.  The Ninth Circuit reversed, finding the conclusion that the job was available unsupported by substantial evidence.  The Ninth Circuit’s unreported decision was also close, having been decided on a 2-1 split.  See Colaruotolo v. SSA Containers, Inc.,  16-72856 (9th Cir. 4/19/18), 2018 U.S. App. LEXIS 9878.
 
In reaching its decision, the Ninth Circuit observed that the vocational expert testified only that the tower clerk job “could” be available to the claimant.  The Court also noted that the vocational expert testified that the tower clerk position was affected by the “politics” of the waterfront, and the availability of the job was “difficult to nail down.”  Finally, the Court found “most telling” that the vocational expert agreed with the claimant’s counsel that the job opening was “actually speculative given all the inanimate forces.”