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Lamear v. Berryhill

United States Court of Appeals, Ninth Circuit

August 1, 2017

Darren Lamear, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner Social Security, Defendant-Appellee.

          Argued and Submitted July 11, 2017 Portland, Oregon.

         Appeal from the United States District Court, No. 3:13-cv-01319-AC for the District of Oregon Marco A. Hernandez, District Judge, Presiding.

          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.

         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 left hand limitations. The panel further held that the ALJ's failure to inquire was not harmless.

          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, ...


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