Darren Lamear v. Nancy Berryhill , 865 F.3d 1201 ( 2017 )

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.