                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 8 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RANDY CLAWSON,                                  No.    16-35681

                Plaintiff-Appellant,            D.C. No. 1:15-cv-00760-PA

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

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Owen M. Panner, District Judge, Presiding

                            Submitted August 3, 2018**

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

      Randy Clawson appeals the district court’s judgment affirming the

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

insurance benefits under Titles II and XVI of the Social Security Act. We have

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo,


      *
             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).
Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.

       The ALJ properly found that Clawson’s spinal impairment did not equal

Listing 1.04B because Clawson did not establish symptoms and laboratory findings

equal in severity and duration to the characteristics of that listing. See Tackett v.

Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (claimant “must establish symptoms,

signs and laboratory findings ‘at least equal in severity and duration’ to the

characteristics of a . . . listed impairment . . . or . . . the listed impairment ‘most

like’ the claimant’s impairment” (citation omitted)).

       The Appeals Council properly considered the October 2013 disability

opinion from the treating physician and the medical imaging results that Clawson

submitted after the hearing. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d

1157, 1162 (9th Cir. 2012). Considering this new evidence, the ALJ’s decision

remains supported by substantial evidence.

       Even if the ALJ erred in discounting Clawson’s testimony concerning the

extent of his symptoms and their limiting effects, any error was harmless. The

ALJ cited the requisite two-step framework and cited specific, clear, and

convincing reasons for discounting portions of his testimony: inconsistencies

between Clawson’s alleged symptoms and daily activities, and a lack of supporting

objective medical evidence. See Treichler v. Comm’r of Soc. Sec. Admin., 775

F.3d 1090, 1102 (9th Cir. 2014). Any error in relying on Clawson’s continued


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smoking and receipt of unemployment benefits was harmless because the ALJ

cited other valid bases to discount Clawson’s testimony. See Bray v. Comm’r of

Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

      At Step Five, the ALJ supported his findings with substantial evidence.

Clawson showed that he cannot perform past relevant work, so the burden shifted

to the Secretary to show that Clawson cannot engage in other substantial gainful

activity. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). The ALJ met

the burden by propounding to a vocational expert a hypothetical that reflected all

of Clawson’s limitations. The VE testified about two jobs that Clawson could

perform, given his residual functional capacity, and the availability of such jobs in

the national economy. See Tackett, 180 F.3d at 1101. Significant numbers of jobs

exist in the national economy, so Clawson is not disabled. See 20 C.F.R.

§§ 404.1566(b), (c).

      The ALJ erred by failing to ask the VE whether his testimony conflicted

with the Dictionary of Occupational Titles, but the error is harmless. See Massachi

v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). The VE’s testimony did

conflict with the DOT – the hypothetical limited exertion to sedentary, and the VE

identified two jobs that require light exertion. However, the record contains

persuasive evidence to support the VE’s deviation from the DOT. Light v. Soc.

Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). Because the VE testified that the


                                          3                                     16-35681
two jobs could be performed with exertional levels no greater than those required

for a sedentary job, the error is harmless. See Massachi, 486 F.3d at 1155 n.19.

      The ALJ’s clerical error in citing an incorrect DOT number for the

production inspector/ checker position is harmless.

      AFFIRMED.




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