Darren Lamear v. Nancy Berryhill
2017 U.S. App. LEXIS 13948
9th Cir.2017Background
- Darren Lamear applied for Social Security disability insurance alleging back/neck problems causing limitations in his left (non-dominant) arm and hand.
- ALJ found an RFC limiting Lamear to occasional left-side handling, fingering, and overhead reaching, with no right-side limitations, and denied benefits at step five based on VE testimony identifying jobs Lamear could perform.
- The VE identified office helper, mail clerk, and parking lot cashier as suitable jobs, but the DOT describes those jobs as requiring "frequent" handling, fingering, and reaching.
- The VE did not explain how those jobs were consistent with Lamear’s unilateral left-hand limitations, and the ALJ did not ask the VE to reconcile the apparent conflict with the DOT.
- Lamear raised the apparent DOT/VE conflict to the Appeals Council; the ALJ’s decision was affirmed by the Appeals Council and the district court, and Lamear appealed to the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ erred by failing to ask the VE to reconcile an apparent conflict between VE testimony and DOT handling/fingering/reaching requirements | ALJ should have asked the VE to reconcile the VE’s job conclusions with DOT jobs that require "frequent" bilateral manipulation; failure to do so is reversible error | ALJ reasonably relied on VE; no obvious conflict or common‑sense resolution existed to require further inquiry | Reversed and remanded: ALJ had duty to elicit reconciliation because the conflict was apparent and not resolved on the record |
| Whether the error was harmless | Lamear: not harmless because record and DOT do not show manipulation requirements are unilateral | Commissioner: harmless because DOT is silent on bilateral requirement and VE accounted for dexterity limitations | Not harmless; cannot assume requirements are unilateral and record lacks explanation, so remand required |
| Whether Lamear’s counsel’s failure to ask the VE about the conflict forfeited the issue | Lamear preserved the issue by raising it to the Appeals Council | Commissioner: Meanel requires claimants to raise issues at hearing; failure to do so bar appeal | Counsel’s failure does not absolve ALJ’s affirmative duty under SSR 00‑4p and controlling precedent; issue properly considered |
Key Cases Cited
- Gutierrez v. Colvin, 844 F.3d 804 (9th Cir. 2016) (ALJ must ask VE to reconcile apparent conflicts between VE testimony and DOT; conflict must be obvious or apparent)
- Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015) (ALJ required to reconcile apparent VE/DOT inconsistencies; duty is affirmative)
- Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007) (SSR 00‑4p procedural requirements ensure clear record when ALJ relies on VE testimony that may conflict with DOT)
- Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999) (claimants represented by counsel generally must raise issues at hearing to preserve them on appeal)
- Barnhart v. Barnhart, 454 F.3d 731 (7th Cir. 2006) (claimant not required to raise DOT/VE conflict at hearing because SSR 00‑4p places inquiry burden on ALJ)