Darren Lamear v. Nancy Berryhill

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARREN LAMEAR, No. 15-35088

Plaintiff-Appellant,

D.C. No.

v. 3:13-cv-01319-

AC

NANCY A. BERRYHILL, Acting

Commissioner Social Security,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, District Judge, Presiding

Argued and Submitted July 11, 2017

Portland, Oregon

Filed August 1, 2017

Before: Marsha S. Berzon, Paul J. Watford,

and John B. Owens, Circuit Judges.

Opinion by Judge Owens

2 LAMEAR V. BERRYHILL

SUMMARY *

Social Security

The panel reversed the district court’s judgment

affirming the Commissioner of Social Security’s denial of a

claimant’s application for disability insurance benefits under

Title II of the Social Security Act.

The vocational expert opined that claimant, who had left

hand manipulative limitations, could still work as an office

helper, mail clerk, or parking lot cashier; and the

administrative law judge (“ALJ”) found that claimant was

not disabled.

The panel held that the ALJ failed to reconcile an

apparent conflict between the testimony of the vocational

expert and the Department of Labor’s Dictionary of

Occupational Titles (“DOT”). Specifically, the panel held

that it could not say that, based on common experience, it

was likely and foreseeable that an office helper, mail clerk,

or parking lot cashier with limitations on his ability to

“handle, finger and feel with the left hand” could perform

his duties. The panel noted that the DOT’s lengthy

descriptions for the jobs strongly suggested that using both

hands would be necessary to perform the tasks. Absent

anything in the record to explain the apparent discrepancy,

the panel reversed and remanded so that the ALJ could ask

the vocational expert to reconcile the jobs with claimant’s

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

LAMEAR V. BERRYHILL 3

left hand limitations. The panel further held that the ALJ’s

failure to inquire was not harmless.

COUNSEL

Alyson R. Young (argued) and Merrill Schneider, Schneider

Kerr & Gibney Law Offices, Portland, Oregon, for Plaintiff-

Appellant.

Jordan Dylan Goddard (argued), Assistant Regional

Counsel; David Morado, Regional Chief Counsel, Seattle

Region X; Office of the General Counsel, Social Security

Administration, Seattle, Washington; Ronald K. Silver,

Assistant United States Attorney; United States Attorney's

Office, Seattle, Washington; for Defendant-Appellee.

OPINION

OWENS, Circuit Judge:

Darren Lamear appeals from the district court’s

judgment affirming the Commissioner of Social Security’s

denial of his application for disability insurance benefits

under Title II of the Social Security Act. We agree with

Lamear that the Administrative Law Judge (“ALJ”) failed to

reconcile an apparent conflict between the testimony of the

vocational expert and the Department of Labor’s Dictionary

of Occupational Titles (“DOT”), so we reverse and remand.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

Lamear applied for disability insurance benefits due to

back and neck problems, which also impacted his left hand

4 LAMEAR V. BERRYHILL

and arm. At a hearing, the ALJ heard testimony from

Lamear, who was represented by counsel, and a vocational

expert (“VE”). The VE opined that an individual with

Lamear’s limitations, which included being able only

“occasionally” to handle, finger, and reach overhead with his

left, non-dominant hand and arm, but with no limitations on

his right side, could not perform Lamear’s past relevant work

as a cashier, bartender, or stockbroker. In particular, the VE

testified that such an individual would have trouble using a

keyboard with his left hand.

However, the VE opined that Lamear could still work as

an office helper, mail clerk, or parking lot cashier, even

though the DOT states that these jobs require “frequent”

handling, fingering, and reaching. Specifically, the VE

testified as follows:

[ALJ:] All right. Can you identify any other

occupations you believe such an individual

[with Lamear’s limitations] would be able to

perform?

[VE:] Yes, your honor. Given the first

hypothetical, work would be performed as an

office helper, 239.567-010, SVP 2, light. We

have about 3,700 people working locally in

this occupation, a little [o]ver 890,000

nationally. The second example would be

mail clerk, 209.687-026, SVP 2, light. We

have a little over 1,900 people working in this

occupation locally and about . . . 233,000

people working nationally. And then a third

example would be park[ing] lot cashier,

211[].462-010, SVP 2, light. We have about

900 people working in the local economy in

LAMEAR V. BERRYHILL 5

this occupation and around 436,000

nationally.

[ALJ:] Okay. . . .

The VE did not explain how Lamear could do this work

with his left hand and arm limitations, and the ALJ never

asked the VE to reconcile any potential inconsistency

between Lamear’s manipulative limitations and the DOT’s

job descriptions. 1

The ALJ denied Lamear’s application for disability

benefits, applying the usual five-step sequential evaluation

process. 20 C.F.R. § 404.1520. The ALJ weighed the

medical evidence and assessed Lamear’s residual functional

capacity (“RFC”) as follows:

[Lamear] has the residual functional capacity

to lift and carry 10 pounds frequently and

20 pounds occasionally. He can stand and

walk up to two hours out of an eight-hour day

and sit six hours out of an eight-hour day. He

cannot climb ladders, ropes or scaffolds. He

can only occasionally climb ramps and

stairs, balance, stoop, kneel, crouch, crawl,

reach overhead with his left upper

extremity, and handle, finger and feel with

the left hand. He should avoid even

1

The ALJ asked the VE about a different possible inconsistency

between the VE’s testimony and the DOT, regarding Lamear’s standing

and walking limitations and the “light” exertion level of the identified

jobs, which is not at issue in this appeal.

6 LAMEAR V. BERRYHILL

moderate exposure to hazards. (emphasis

added)

At step five—the only step at issue on appeal—the ALJ

found, in light of the RFC assessment and based on the VE’s

testimony, that there were jobs that existed in significant

numbers in the national economy that Lamear could

perform, such as office helper, mail clerk, or parking lot

cashier. On that basis, the ALJ found Lamear not disabled

and denied his claim for disability benefits.

Lamear requested review from the Appeals Council,

which denied his request, making the ALJ’s decision the

final agency decision. Before the Appeals Council, Lamear

argued that there was an apparent conflict between his

manipulative limitations and the DOT which the ALJ should

have reconciled.

Lamear then appealed to the district court, which

affirmed. The district court rejected Lamear’s argument that

there was an apparent conflict between the VE’s testimony

and the DOT. However, the district court noted that the

Ninth Circuit has not yet ruled on whether “handling,”

“fingering,” and “reaching” in the DOT require the ability to

use both hands or arms, and that district courts are divided

on this issue. This timely appeal followed.

II. STANDARD OF REVIEW

We review de novo a district court’s decision regarding

the Commissioner’s disability determination. Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009).

We must uphold the Commissioner’s decision if it is

“supported by substantial evidence and a correct application

of the law.” Id. (citation omitted).

LAMEAR V. BERRYHILL 7

III. DISCUSSION

In determining whether an applicant is entitled to

disability benefits, an ALJ may consult a series of sources,

including a VE and the DOT. Presumably, the opinion of

the VE would comport with the DOT’s guidance. But “[i]f

the expert’s opinion that the applicant is able to work

conflicts with, or seems to conflict with, the requirements

listed in the Dictionary, then the ALJ must ask the expert to

reconcile the conflict before relying on the expert to decide

if the claimant is disabled.” Gutierrez v. Colvin, 844 F.3d

804, 807 (9th Cir. 2016). 2

We have explained that the conflict must be “obvious or

apparent” to trigger the ALJ’s obligation to inquire further.

Id. at 808. For example, in Gutierrez, the applicant could

not reach above shoulder level with her right arm. Id. at 807.

The VE opined that she could work as a cashier, and the ALJ

did not specifically question the VE about how the applicant

could do this in light of her inability to reach overhead with

her right arm. Id. The applicant in Gutierrez, like Lamear,

argued that the ALJ should have recognized a conflict

between the DOT and the VE’s testimony, and questioned

the VE more closely. Id. We held there was no error

because, based on common experience, it is “unlikely and

unforeseeable” that a cashier would need to reach overhead,

and even more rare for one to need to reach overhead with

both arms. Id. at 808–09 & 809 n.2.

Of course, “[t]he requirement for an ALJ to ask follow

up questions is fact-dependent,” id. at 808, and the more

obscure the job, the less likely common experience will

2

The district court here did not have the benefit of our recent

decision in Gutierrez.

8 LAMEAR V. BERRYHILL

dictate the result. To avoid unnecessary appeals, an ALJ

should ordinarily ask the VE to explain in some detail why

there is no conflict between the DOT and the applicant’s

RFC. 3 Doing so here likely would have eliminated the need

for this appeal.

But now that this appeal is before us, we must decide it.

Contrary to the facts in Gutierrez, we cannot say that, based

on common experience, it is likely and foreseeable that an

office helper, mail clerk, or parking lot cashier with

limitations on his ability to “handle, finger and feel with the

left hand” could perform his duties. The DOT’s lengthy

descriptions for these jobs strongly suggest that it is likely

and foreseeable that using both hands would be necessary to

perform “essential, integral, or expected” tasks in an

acceptable and efficient manner. Id. According to the DOT,

the general tasks for these jobs include opening and sorting

mail, stuffing envelopes, distributing paperwork, and

counting change. See DOT 239.567-010 (office helper),

1991 WL 672232; DOT 209.687-026 (mail clerk), 1991 WL

671813; DOT 211.462-010 (cashier II, which includes

3

See Social Security Ruling (“SSR”) 00-4p, 2000 WL 1898704, at

*2 (Dec. 4, 2000) (explaining the ALJ’s duty to “fully develop the

record” as to whether there is consistency between VE occupational

evidence and the DOT); Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir.

2015) (“The ALJ’s failure to resolve an apparent inconsistency may

leave us with a gap in the record that precludes us from determining

whether the ALJ’s decision is supported by substantial evidence.”);

Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (“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.”); see also Moore v. Colvin, 769 F.3d 987, 990 (8th

Cir. 2014) (“The ALJ is not absolved of this duty [to reconcile conflicts]

merely because the VE responds ‘yes’ when asked if her testimony is

consistent with the DOT.”).

LAMEAR V. BERRYHILL 9

parking lot cashier), 1991 WL 671840. Moreover, all three

jobs require workers to “frequently” engage in handling,

fingering, and reaching, which means that these types of

activities could be necessary for as much as two-thirds of the

workday. Id. Absent anything in the record to explain this

apparent discrepancy, we must reverse and remand so the

ALJ can ask the VE to reconcile these jobs with Lamear’s

left hand limitations.

The Commissioner urges us to find the ALJ’s failure to

reconcile the conflict harmless, see Massachi, 486 F.3d at

1154 n.19, by presuming that the handling, fingering, and

reaching requirements are unilateral since the DOT does not

expressly state that they demand both hands. That argument

assumes away the question of whether these requirements

necessitate both hands, an issue that has divided many

courts. 4 As discussed above, we cannot determine from this

record, the DOT, or our common experience whether the

jobs in question require both hands, so we cannot say the

ALJ’s failure to inquire was harmless. Further, we are

unpersuaded by the Commissioner’s argument that the

ALJ’s failure was harmless because the VE considered

bilateral dexterity when formulating his answers, as shown

by the VE’s testimony that a person with Lamear’s

4

See, e.g., Pearson v. Colvin, 810 F.3d 204, 211 (4th Cir. 2015);

Bickford v. Comm’r of Soc. Sec., No. 2:12-CV-2557-CMK, 2014 WL

1302459, at *2 (E.D. Cal. Mar. 28, 2014); Lee v. Astrue, No. 6:12-cv-

00084-SI, 2013 WL 1296071, at *10–11 & *11 n.5 (D. Or. Mar. 28,

2013); Marquez v. Astrue, No. CV-11-339-TUC-JGZ-DTF, 2012 WL

3011778, at *2–3 (D. Ariz. May 2, 2012), adopted by 2012 WL 3011779

(D. Ariz. July 23, 2012); Marshall v. Astrue, No. 08-cv-1735-L(WMc),

2010 WL 841252, at *6 (S.D. Cal. Mar. 10, 2010); Fortes v. Astrue, No.

08-cv-317-BTM(RBB), 2009 WL 734161, at *5 (S.D. Cal. Mar. 18,

2009); Feibusch v. Astrue, Civ. No. 07-00244 BMK, 2008 WL 583554,

at *4–5 (D. Haw. Mar. 4, 2008).

10 LAMEAR V. BERRYHILL

limitations could not perform his past work due to trouble

using a keyboard with his left hand.

The Commissioner cites Meanel v. Apfel, 172 F.3d 1111,

1115 (9th Cir. 1999), to argue that Lamear’s counsel during

cross-examination should have asked the VE to reconcile the

DOT with his conclusion, and that counsel’s failure requires

us to affirm. In Meanel, the claimant’s counsel did not

present statistical evidence to the ALJ and Appeals Council,

and we held that claimants who are represented by counsel

“must raise all issues and evidence at their administrative

hearings . . . to preserve them on appeal.” Id.

Unlike the claimant in Meanel, Lamear raised this issue

to the Appeals Council. And more importantly, our law is

clear that a counsel’s failure does not relieve the ALJ of his

express duty to reconcile apparent conflicts through

questioning: “When there is an apparent conflict between the

vocational expert’s testimony and the DOT—for example,

expert testimony that a claimant can perform an occupation

involving DOT requirements that appear more than the

claimant can handle—the ALJ is required to reconcile the

inconsistency.” 5 Zavalin, 778 F.3d at 846 (emphasis added).

5

See also SSR 00-4p, 2000 WL 1898704, at *2 (“When there is an

apparent unresolved conflict between VE or [vocational specialist ‘VS’]

evidence and the DOT, the adjudicator must elicit a reasonable

explanation for the conflict before relying on the VE or VS evidence to

support a determination or decision about whether the claimant is

disabled. At the hearings level, as part of the adjudicator’s duty to fully

develop the record, the adjudicator will inquire, on the record, as to

whether or not there is such consistency.” (emphasis added)); id. at *4

(“When a VE or VS provides evidence about the requirements of a job

or occupation, the adjudicator has an affirmative responsibility to ask

about any possible conflict between that VE or VS evidence and

information provided in the DOT.” (emphasis added)); Prochaska v.

LAMEAR V. BERRYHILL 11

That inquiry did not happen here, and so we must remand

the case to permit the ALJ to follow up with the VE. 6

REVERSED AND REMANDED.

Barnhart, 454 F.3d 731, 735 (7th Cir. 2006) (holding that the claimant

“was not required to raise th[e conflict] at the hearing, because [SSR 00-

4p] places the burden of making the necessary inquiry on the ALJ”).

6

We reject Lamear’s separate argument that the ALJ “modified” the

hypothetical at step five such that the VE’s testimony was ambiguous.