                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        DEC 13 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CRAIG A. BUCKINS,                               No.    16-17097

                Plaintiff-Appellant,            D.C. No. 2:15-cv-01011-EFB

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                 Edmund F. Brennan, Magistrate Judge, Presiding

                          Submitted November 30, 2017**


Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

      Craig Buckins appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of his application for disability insurance

benefits and supplemental security income under Titles II and XVI of the Social



      *
             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).
Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,

Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we affirm.

      The ALJ erred in relying on the vocational expert’s testimony that Buckins

could perform light work as a housekeeping cleaner and ticket taker even though

the ALJ assessed that he retained the residual functional capacity to reach only

occasionally in front and laterally with his right, non-dominant arm and could

engage only in simple, repetitive, routine tasks. There was an apparent conflict

between the expert’s testimony and the Dictionary of Occupational Titles

(“DOT”), which states that the occupation of housekeeping cleaner involves

frequent reaching and that the occupation of ticket seller requires constant

reaching. See Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016). Buckins

could use his left arm, but, as a matter of common experience, most people would

think of housekeeping cleaning and ticket taking as occupations performed with

two arms. See Lamear v. Berryhill, 865 F.3d 1201, 1205-06 (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). For the occupation of ticket taker, there was also an apparent conflict

between the vocational expert’s testimony and the DOT’s statement that this

occupation requires Level 3 Reasoning. See Zavalin v. Colvin, 778 F.3d 842, 847


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(9th Cir. 2015) (holding that there was an apparent conflict between the RFC to

perform simple, repetitive tasks and the demands of Level 3 Reasoning). The ALJ

therefore erred in failing to ask the vocational expert to resolve these conflicts. See

Gutierrez, 844 F.3d at 807.

      Buckins 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, who had an affirmative

duty to inquire about any apparent conflict between the vocational expert’s

testimony and the DOT. See Lamear, 865 F.3d at 1206. The ALJ’s errors as to

both the housekeeping cleaner and the ticket taker occupations nonetheless were

harmless because the vocational expert and the ALJ identified three alternative,

sedentary occupations – envelope addresser, call-out operator, and surveillance

system monitor.

      Buckins does not challenge the ALJ’s finding that he could perform the light

occupation of children’s attendant, but, as he notes, the 5,104 jobs available in that

occupation do not constitute a significant number of jobs in the national economy.

See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014)

(concluding that it was a “close call” but 25,000 national jobs was significant).

The total 25,904 jobs available in these occupations plus the occupation of

children’s attendant amount to a significant number of jobs in the national

economy. See id. The ALJ’s errors therefore were inconsequential to the ultimate


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nondisability determination, and harmless. See Brown-Hunter, 806 F.3d at 492

(defining harmless error).

      AFFIRMED.




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