                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JUL 26 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
DANIEL BERRY,                                    No. 13-36108

              Plaintiff-Appellant,               D.C. No. 2:12-cv-01494-MJP

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

              Defendant-Appellee.


                  Appeal from the United States District Court
                     for the Western District of Washington
                Marsha J. Pechman, Senior District Judge, Presiding

                        Argued and Submitted July 8, 2016
                              Seattle, Washington

Before: TASHIMA and M. SMITH, Circuit Judges and KOBAYASHI,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The Honorable Leslie E. Kobayashi, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
      Plaintiff-Appellant Daniel Berry (“Berry”) appeals the order adopting the

magistrate judge’s report and recommendation to affirm the decision of Defendant-

Appellee Carolyn W. Colvin, Acting Commissioner of Social Security

Administration (“the Commissioner”), to deny social security disability benefits

and supplemental security income benefits.

      First, we decline to address Berry’s argument that the administrative law

judge (“ALJ”) erred in failing to give him notice that, in order to prove that he

could not return to his past relevant work, he had to submit written documentation

that he previously held a commercial driver’s license (“CDL”) and that his last

employer required him to have a CDL. We will not reverse an ALJ’s decision

based on a legal error that is harmless. Treichler v. Comm’r of Soc. Sec. Admin.,

775 F.3d 1090, 1099 (9th Cir. 2014). Even assuming, arguendo, that the ALJ

erred in failing to give Berry notice of those requirements, the error was harmless

because the ALJ found at step four that Berry could not return to his past relevant

work as a courier driver – as he previously performed it – because he could not

perform the exertion requirements of the position. See Molina v. Astrue, 674 F.3d

1104, 1110 (9th Cir. 2012) (describing the five-step sequential evaluation to

determine whether a claimant is disabled).




                                          2
      Second, the evidence that Berry presented to the Appeals Council – which

the Commissioner has not refuted – suffices to show for purposes of this case that

any person who is taking narcotic pain medication cannot work as a commercial

driver, even if the position does not require a CDL. The ALJ therefore erred in

concluding at step four that Berry could still perform his past relevant work as a

courier driver, as that job was performed in the national economy. However, the

error is harmless because of the ALJ’s alternative step five finding that there were

other jobs which existed in significant numbers in the national economy that Berry

could perform.

      Third, the ALJ did not err in adopting the previous findings regarding

Berry’s residual functional capacity (“RFC”) because: 1) the ALJ gave

“persuasive, specific, [and] valid reasons . . . that [were] supported by the record”

for discounting the Veteran’s Administration’s disability determination; see Berry

v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010); 2) although this Court’s prior

opinion held that the ALJ on remand may reconsider Berry’s RFC, it did not

require the ALJ to do so; id. at 1234-35; and 3) the relevant legal authority

supports the ALJ’s conclusion that Berry’s inability to pass a drug test would not

preclude him from performing the other jobs that the vocational expert (“VE”)

testified he had the RFC to perform.


                                           3
      Finally, we decline to consider Berry’s argument – raised for the first time at

oral argument – regarding the sufficiency of the VE’s testimony about the number

of jobs in the national economy that the VE testified were within Berry’s RFC.

See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      AFFIRMED.




                                          4
