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Lamear v. Berryhill

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Aug 1, 2017
865 F.3d 1201 (9th Cir. 2017)

Summary

holding that court could not say that, "based on common experience, it [was] likely and foreseeable" that the claimant, with limitations on his abilities with his left hand, could perform the duties of an office helper, mail clerk, or parking lot cashier

Summary of this case from Buckins v. Berryhill

Opinion

No. 15-35088

08-01-2017

Darren LAMEAR, Plaintiff–Appellant v. Nancy A. BERRYHILL, Acting Commissioner Social Security, Defendant–Appellee

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.


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.

Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens, Circuit Judges.

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 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 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.

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.

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 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). 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).

The district court here did not have the benefit of our recent decision in Gutierrez.

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 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. Doing so here likely would have eliminated the need for this appeal.

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.").

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 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. 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 limitations could not perform his past work due to trouble using a keyboard with his left hand.

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).

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." Zavalin , 778 F.3d at 846 (emphasis added).That inquiry did not happen here, and so we must remand the case to permit the ALJ to follow up with the VE.

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. 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").

We reject Lamear's separate argument that the ALJ "modified" the hypothetical at step five such that the VE's testimony was ambiguous.
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REVERSED AND REMANDED.


Summaries of

Lamear v. Berryhill

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Aug 1, 2017
865 F.3d 1201 (9th Cir. 2017)

holding that court could not say that, "based on common experience, it [was] likely and foreseeable" that the claimant, with limitations on his abilities with his left hand, could perform the duties of an office helper, mail clerk, or parking lot cashier

Summary of this case from Buckins v. Berryhill

holding "a counsel's failure does not relieve the ALJ of his express duty to reconcile apparent conflicts [between the DOT and the VE's testimony] through questioning."

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holding that claimant's counsel's failure to question the VE about conflicts between his testimony and the DOT did "not relieve the ALJ of his express duty to reconcile apparent conflicts through questioning"

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finding that it is not "likely and foreseeable that an office helper, mail clerk, or parking lot cashier with limitations on the ability to 'handle, finger and feel with the left hand' could perform these duties"

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finding that claimant did not waive the issue of a conflict between the VE's testimony and the DOT by failing to raise the issue before the ALJ because the ALJ had an affirmative duty to inquire about any apparent conflict between the vocational expert's testimony and the DOT

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concluding that, because the ALJ did not inquire as to the conflict between the DOT and the vocational expert's testimony, the Court "must remand the case to permit the ALJ to follow up with the [vocational expert]"

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reversing and remanding to permit ALJ to follow up with vocational expert

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rejecting the Commissioner's argument that failure to reconcile the conflict between the testimony and the DOT was harmless because it could be presumed that the handling, fingering and reaching requirements are unilateral since the DOT does not expressly state that they demanded both hands

Summary of this case from Chavez-Fuentes v. Saul

rejecting argument that the fact that the DOT does not expressly require bilateral reaching in a job description implies that only unilateral reaching is required, stating "we cannot determine from this record, the DOT, or our common experience whether the jobs in question require both hands"

Summary of this case from Crouse v. Saul

rejecting argument that the fact that the DOT does not expressly require bilateral reaching in a job description implies that only unilateral reaching is required, stating "we cannot determine from this record, the DOT, or our common experience whether the jobs in question require both hands"

Summary of this case from Swearengin v. Berryhill

rejecting the Commissioner's argument that claimant's counsel waived an issue by failing to raise it during the hearing in front of the ALJ and distinguishing the case from Meanel by noting that "[u]nlike the claimant in Meanel, Lamear raised this issue to the Appeals Council."

Summary of this case from Ortega v. Berryhill

relying on common experience and finding apparent conflict between DOT and vocational expert's opinion

Summary of this case from Randazzo v. Berryhill

In Lamear, the Ninth Circuit found the ALJ was required to ask the VE to reconcile an apparent conflict between a person with limitations in his ability to handle, finger, and feel with his left hand, and representative jobs that required his being able to handle, finger and reach for as much as two-thirds of the workday.

Summary of this case from Jessica E. v. Comm'r Soc. Sec. Admin.

In Lamear, the court noted, an ALJ's duty to inquire further into conflicts between a VE's testimony and the DOT, is triggered only when conflicts are obvious and apparent.

Summary of this case from Jessica E. v. Comm'r Soc. Sec. Admin.

In Lamear, the Ninth Circuit directed the ALJ to resolve on remand whether a claimant who can only occasionally reach overhead with his left upper extremity can perform the duties of a cashier, given that it is unclear from the record, the DOT, and common experience whether cashiering requires use of both hands.

Summary of this case from Ann S. v. Comm'r of Soc. Sec.

In Lamear, the ALJ determined that the claimant could occasionally handle and finger with his non-dominant hand and arm.

Summary of this case from Altamirano v. O'Malley

explaining that all evidence and issues must be raised before the ALJ and Appeals Council to be preserved for appeal

Summary of this case from Stamps v. O'Malley

considering tasks described in DOT such as opening and sorting mail, stuffing envelopes, distributing paperwork, and counting change, it was likely and foreseeable that using both hands would be necessary to perform “essential, integral, or expected tasks” in an acceptable and efficient manner

Summary of this case from David R. v. Kijakazi

In Lamear, the plaintiff was limited to occasional handling, fingering, and overhear reaching with the left upper extremity, but the vocational expert testified he could perform the jobs of office worker, mail clerk, and parking lot cashier, all of which required frequent handling, fingering, and reaching pursuant to the DOT. Id. at 1203.

Summary of this case from Theresa G. v. Kijakazi

In Lamear, the claimant was limited to “reach[ing] overhead with his left upper extremity,” and the VE testified that the claimant could perform the occupations of an office helper, mail clerk, or parking lot cashier.

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In Lamear, the plaintiff was limited to occasional handling with his left, non-dominant hand, but the VE testified he could perform jobs requiring frequent handling.

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noting the absence of "anything in the record to explain th[e] apparent discrepancy"

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remanding for development of record concerning particular job duties when plaintiff was limited to occasional handling with left hand and jobs identified by ALJ required "frequent" handling

Summary of this case from Barbara A. v. Saul

attributing GOE requirements for frequent handling, fingering, and reaching to the DOT, and holding that an ALJ erred in failing to reconcile a conflict between the VE's testimony and that requirement

Summary of this case from I.R. v. Saul

In Lamear, however, plaintiff's challenge was based on an apparent unresolved conflict with the DOT, not apparent unresolved conflicts with non-DOT sources such as those at issue here and addressed in Shaibi.

Summary of this case from Tommy J. v. Saul
Case details for

Lamear v. Berryhill

Case Details

Full title:DARREN LAMEAR, Plaintiff-Appellant, v. NANCY A. BERRYHILL, Acting…

Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: Aug 1, 2017

Citations

865 F.3d 1201 (9th Cir. 2017)

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