NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDY CLAWSON, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 16-35681 

D.C. No. 1:15-cv-00760-PA 

MEMORANDUM*

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).

FILED

AUG 8 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-35681 

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 
3 16-35681 

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
4 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.