                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 22 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

REFUGIO VARGAS,                                 No.    17-16236

                Plaintiff-Appellant,            No. 1:15-CV-992 GSA

 v.                                             MEMORANDUM*

NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Gary S. Austin, Magistrate Judge, Presiding

                           Submitted August 20, 2018**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

      Refugio Vargas appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Vargas’s application for disability

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

Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.


      *
             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).
§ 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir.

2016), and we affirm.

      Substantial evidence supports the Administrative Law Judge’s (“ALJ”)

conclusion at Step Four that Vargas’s experience as a packager qualified as past

relevant work. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). We do

not address the Commissioner’s contention that Vargas waived his challenge to

this finding, because the Commissioner did not raise this argument in the district

court and therefore has waived it on appeal. See Conn. Gen. Life Ins. Co. v. New

Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir. 2003).

      However, the ALJ erred at Step Four by failing to recognize and resolve the

conflict between the description in the Dictionary of Occupational Titles (“DOT”)

of the position of packager as entailing frequent exposure to atmospheric

conditions, DOT 920.587-018, 1991 WL 687916 (2016), and Vargas’s RFC, which

requires him to “avoid moderate exposure to fumes, odors, dust, gas, and poor

ventilation.” Because the ALJ did not make the requisite factual findings in support

of the conclusion that Vargas could perform his past work as a packager despite

this conflict, the ALJ’s Step Four finding lacks substantial evidentiary support. See

Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001).

      Nevertheless, in light of the ALJ’s alternative findings at Step Five that

Vargas could perform the position of kitchen helper and that a significant number


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of these positions exist in the national economy, any error at Step Four was

harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The record

does not support Vargas’s contention that the vocational expert, in responding to

the ALJ’s hypothetical, misconstrued Vargas’s limitation as including only over-

shoulder reaching by his non-dominant arm, rather than reaching at shoulder level

or above. Nor did the ALJ err by failing to resolve a conflict between the DOT’s

requirements for kitchen helper and the vocational expert’s testimony that Vargas

could perform this position, because any such conflict was not “obvious or

apparent.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (ALJ need only

resolve conflicts between expert testimony and the DOT that are obvious or

apparent).

      AFFIRMED.




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