Azizeh Rashidi v. Nancy Berryhill

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AZIZEH RASHIDI, No. 16-55542 Plaintiff-Appellant, D.C. No. 3:14-cv-00136-JAH-PCL v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner Social Security, Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding Submitted November 15, 2017** Before: CANBY, TROTT, and GRABER, Circuit Judges.

Azizeh Rashidi appeals the district court’s decision affirming the Commissioner of Social Security’s denial of her application for supplemental security income under Title XVI of the Social Security Act. We have jurisdiction * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 28 U.S.C. § 1291. We review de novo, Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we reverse and remand.

Rashidi contends that, at step five of the sequential analysis, the administrative law judge (“ALJ”) erred in relying on the vocational expert’s testimony that she could perform work as a sorter, stuffer, and polisher even though the ALJ assessed she retained the residual functional capacity to use her right, dominant hand only occasionally for fine and gross manipulation. Under Lamear v. Berryhill, 865 F.3d 1201 (9th Cir. 2017), this contention has merit.

There was an apparent conflict between the expert’s testimony and the Dictionary of Occupational Titles, which provides that the occupations identified by the expert require frequent handling and fingering. See id. at 1206 (concluding that there was an apparent conflict between the Dictionary and a vocational expert’s opinion that a claimant with left hand and arm limitations could work as an office helper, mail clerk, or parking lot cashier). The ALJ erred by failing to ask the expert to reconcile the conflict. See Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016).

This error was not harmless because it is not possible to determine from the record, the Dictionary, or common experience whether the jobs of sorter, stuffer, and polisher require both hands. See Lamear, 865 F.3d at 1206-07 (reversing and remanding to permit ALJ to follow up with vocational expert).

REVERSED and REMANDED.