Azizeh Rashidi v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION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

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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.

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