FILED

NOT FOR PUBLICATION

APR 19 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

COSMO COLARUOTOLO, No. 16-72856

Petitioner, BRB No. 16-0066

v.

MEMORANDUM*

SSA CONTAINERS, INC.; HOMEPORT

INSURANCE CO.; DIRECTOR, OFFICE

OF WORKERS’ COMPENSATION

PROGRAM,

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Argued and Submitted April 12, 2018 Pasadena, California

Before: ROGERS,** BYBEE, and WATFORD, Circuit Judges.

Petitioner Cosmo Colaruotolo worked for several decades as a longshoreman

in the Los Angeles Harbor, performing various roles. He suffered several work-

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John M. Rogers, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. related injuries throughout the years, consequently undergoing numerous back

surgeries and spinal fusions. After his final injury in 2010, Petitioner sought

permanent total-disability benefits under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. § 908, from his employer and its insurance carrier

(collectively, “Respondents”). Although an Administrative Law Judge (“ALJ”)

initially granted these benefits, he later granted Respondents’ motion for

reconsideration, holding that Petitioner was able to work as a tower clerk and that

this position was reasonably available. The Benefits Review Board (“the Board”)

affirmed in a divided decision. Petitioner now seeks review before this court.

We have jurisdiction under 33 U.S.C. § 921(c). “It is well settled that the

Board’s findings may not be disturbed unless they are unsupported by ‘substantial

evidence on the record considered as a whole.’” Cordero v. Triple A Mach. Shop,

580 F.2d 1331, 1333 (9th Cir. 1978) (quoting Banks v. Chi. Grain Trimmers Ass’n,

390 U.S. 459, 467 (1968)). This includes the finding of whether there is suitable

alternate work reasonably available to an employee. See Bumble Bee Seafoods v.

Dir., Office of Workers’ Comp. Programs, 629 F.2d 1327, 1329–30 (9th Cir.

1980). We grant the petition.

In holding that the tower-clerk position would be available to Petitioner at

least three days a week, the ALJ relied solely on the opinion of Respondents’

2 vocational expert (“VE”). The ALJ originally concluded that the VE had opined

that this position’s availability was “speculative.” However, the ALJ later reversed

course, finding that “a fairer reading” of the VE’s deposition testimony was that

the tower-clerk position was available at least three days a week and “that the

speculation related to whether [Petitioner] could obtain the tower clerk position . . .

four or five days per week.”

This conclusion is unsupported by substantial evidence for several reasons.

First, a complete reading of the VE’s testimony reveals that he was unwilling to

unequivocally state that the tower-clerk position would be available even three

days a week. For instance, when Petitioner’s counsel asked the VE what

information led him “to the conclusion that that much tower clerk work would be

available to” Petitioner, the VE first responded by correcting counsel’s portrayal of

his testimony: “Could be available to him.” Moreover, the VE stated soon after

that “there is a great deal of politics that goes on on the waterfront when it comes

to jobs that workers do. And no . . . greater impact are these forces than on . . .

tower clerk[s] or accommodating kinds of work.” He then acknowledged that the

position’s availability is “difficult to nail down . . . .” And, perhaps most telling,

when counsel asked whether the VE’s assessment was “actually speculative given

3 all the inanimate forces,” the VE responded affirmatively and confirmed that “we

can’t put a hard number on it[.]”

The Board did not confront these statements in concluding that the

tower-clerk position would be reasonably available to Petitioner. Rather, the

Board merely portrayed the issue as a conflict in testimony between Respondents’

VE and Petitioner’s VE—who estimated the position is available only three to four

times a month—and ultimately deferred to the ALJ’s weighing of the evidence.

But a full reading of the testimony discussed above does not convey any sense of

assurance that the tower-clerk position would be reasonably available to Petitioner.

Second, the findings by Respondents’ VE were premised on demonstrably

incorrect information. The VE explicitly based his availability conclusion in part

on Petitioner’s purported statements (1) that tower clerk was Petitioner’s preferred

position before his final accident and (2) that he could obtain at least three days of

work if he showed up to the casualty board five or six days a week. When

Petitioner’s counsel asserted that Petitioner never made these statements, the VE

referred to his notes from their meeting. But contrary to the VE’s recollection, his

own notes reflect that Petitioner stated that the position is “rarely available” and

that Petitioner previously worked the position only “occasionally.” Petitioner also

testified to these facts during the hearing before the ALJ, and his employment

4 records reveal that he never worked the tower-clerk position during his final period

of employment before his latest injury. The Board, however, erroneously

perceived this issue as a conflict in evidence rather than a defect in the VE’s

underlying information.

Additionally, the VE’s analysis regarding the tower-clerk position’s

availability does not take into account the fact that Petitioner medically retired

from his union in 2011. It is therefore unclear whether Petitioner’s union seniority

remains intact, which is a factor critical to the distribution of jobs at the Los

Angeles Harbor, even absent disability accommodations. See Lujan v. Pac. Mar.

Ass’n, 165 F.3d 738, 739 (9th Cir. 1999). Respondents argue that we should not

take this fact into consideration because Petitioner chose to medically retire.

Petitioner persuasively counters, however, that he only medically retired between

his third and fourth surgeries and that it would be unreasonable to require him to

maintain his union status and pay dues when he perceived no reasonable likelihood

of returning to work. Moreover, union seniority is a relevant factor that must be

considered when analyzing whether Petitioner could realistically obtain the tower-

clerk position. Cf. Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1195–96

(9th Cir. 1988) (concluding that the Board erred in holding that the ALJ, in

assessing the availability of suitable alternate work, should not take into account

5 the fact that the employee’s prior criminal conviction barred him from obtaining a

position at a bank).

Finally, the ALJ and Board failed to consider the fact that Petitioner had

ample incentives to return to work as a tower clerk if the position was readily

available to him. Upon being transferred to the clerk’s union, Petitioner’s salary

would have nearly doubled and his pension payments would have increased by

approximately $1000 per month when he took full retirement after three more

years of work. Absent being disabled or not having the position available, it is

difficult to imagine that an employee would decline to work in such a relatively

non-strenuous clerical position until full retirement and thereby forego significant

financial benefits.

When these issues are considered collectively, it is evident that the ALJ and

the Board’s findings regarding the availability of the tower-clerk position are

unsupported by substantial evidence.1 We therefore GRANT the petition for

review and remand for an award of permanent total-disability benefits.

1 Because this conclusion is dispositive to Petitioner’s disability claim, we need not reach his other arguments. 6 No.16-72856 FILED Colaruotolo v. SSA Containers Inc.

APR 19 2018

ROGERS, Circuit Judge, dissenting. MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I would deny the petition for review. On substantial-evidence review, under

which we review the Board’s findings, Cordero v. Triple A Mach. Shop, 580 F.2d

1331, 1333 (9th Cir. 1978), we defer to the decision below unless the evidence

compels the contrary conclusion, cf. Avetova-Elisseva v. INS, 213 F.3d 1192, 1196

(9th Cir. 2000) (citing Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)). The

evidence before the Board was not so deficient as to warrant reversal under that

deferential standard.

The finding that the tower-clerk job was available to Colaruotolo was

reasonable. Although Stauber was not willing to state unequivocally that the tower-

clerk position would be available to Colaruotolo no less than three days per week,

testimony need not be unequivocal to count as substantial evidence. Because the

ALJ’s interpretation of Stauber’s testimony was permissible, it qualifies as

substantial evidence.

The information on which Stauber based his testimony was not inherently

flawed. The notes from Stauber’s conversation with Colaruotolo are scribbled and

probative of very little. In any event, Stauber based his conclusion not only on his

discussions with Colaruotolo, but also on discussions with multiple other clerks in

similar situations and with terminal managers. Therefore, there is no indication that

Stauber based his conclusion on demonstrably incorrect evidence. No.16-72856 Colaruotolo v. SSA Containers Inc.

Colaruotolo’s voluntary retirement from the union does not help his case. If

that is enough to defeat SSA’s showing of alternative employment, it is difficult to

imagine how this system could function when, to defeat a finding that there exists

available union employment, any union-member claimant could retire from their

union, thereby likely eliminating most, if not all, of the jobs that would otherwise be

available.

Based on the totality of the record, the ALJ’s decision was not so wrong as to

warrant reversal on substantial-evidence review.