NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROY LEE MAXWELL, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 19-16956 

D.C. No. 1:18-cv-00894-GSA 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Gary S. Austin, Magistrate Judge, Presiding

Submitted December 11, 2020**

San Francisco, California

Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.

Plaintiff Roy Lee Maxwell appeals the district court’s denial of his appeal of 

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

* 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).

*** The Honorable Danny J. Boggs, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

DEC 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

insurance benefits. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Maxwell applied for disability insurance benefits in 2014, but the 

Commissioner denied his application initially, and upon reconsideration. After a 

hearing in which the administrative law judge (ALJ) considered both the 

Dictionary of Occupational Titles (DOT) and the testimony of a vocational expert 

(VE), the ALJ found that Maxwell was not entitled to benefits because he failed 

step five of the disability analysis—even though he was unable to do past relevant 

work, the government established that there was work existing in significant 

numbers in the national economy that he could perform. See 20 C.F.R. § 

404.1560. The ALJ based this step-five finding on the VE’s testimony that a 

hypothetical person with the same residual functional capacity (RFC) as Maxwell

could work as a dishwasher, laundry worker, or order picker. The Appeals Council 

denied Maxwell’s request for review, and the district court denied Maxwell’s

appeal.

On appeal of the district court’s denial, Maxwell argues that the ALJ erred 

by failing to resolve conflicts between the VE’s testimony and information in the 

DOT, as required by Social Security Ruling (SSR) 00-4p. 2000 WL 1898704, at 

*2. In particular, Maxwell argues that according to the DOT, (1) being a 

dishwasher or laundry worker requires exposure to “environmental conditions,” 

contrary to the limitation in his RFC that he have “no exposure to hazards, such as 
3 

unprotected heights or moving machinery,” and (2) the job of an order picker

involves occasional climbing, contrary to the limitation in his RFC that he “never 

climb ladders, ropes, or scaffolds.”

We review the ALJ’s factual findings for substantial evidence. Biestek v. 

Berryhill, 139 S. Ct. 1148, 1153 (2019) (quoting 42 U.S.C. § 405(g)). In general, a 

VE’s testimony may be substantial evidence on its own to support a nondisability 

finding. See Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020). Moreover, an ALJ 

may rely on VE testimony that conflicts with the DOT so long as there is 

“persuasive testimony” to support the deviation. Massachi v. Astrue, 486 F.3d 

1149, 1153 (9th Cir. 2007) (citation omitted). Before resolving a conflict between 

the VE’s testimony and the DOT, “the ALJ must first determine whether a conflict 

exists” at all. Id. And for “a difference between [a VE’s] testimony and the 

[DOT’s] listings to be fairly characterized as a conflict, it must be obvious or 

apparent. This means that the testimony must be at odds with the [DOT’s] listing 

of job requirements that are essential, integral, or expected.” Gutierrez v. Colvin, 

844 F.3d 804, 808 (9th Cir. 2016).

Here, there was no “obvious or apparent” conflict between the VE’s 

testimony and the DOT, so there was nothing for the ALJ to resolve. First, 

environmental conditions are not “hazards” prohibited by Maxwell’s RFC. In fact, 

SSR 83-10 separates “environmental conditions” into subcategories, one of which 
4 

is “hazards.” 1983 WL 31251, at *5. In doing so, the Ruling makes clear that 

environmental conditions and hazards are not coextensive. SSR-96-9p also 

excludes environmental conditions from its detailed list of occupational hazards, 

see 1996 WL 374185, at *9, further suggesting that environmental conditions are 

not necessarily hazards. There was thus no conflict between the DOT and the 

VE’s testimony that Maxwell could work as a dishwasher or laundry worker, both 

of which involve exposure to certain environmental conditions.

1

Second, climbing ladders, ropes, or scaffolds is not a requirement for every 

job as an order picker. Although the DOT does list “[c]limbing . . . [o]ccasionally” 

in the “task element” statement for the order-picker occupation, that statement 

explains that an order picker performs “any combination of [the] following 

tasks”—not that every order picker must perform every task listed. DOT, 922.687-

058 (Laborer, Stores), 1991 WL 688132. Cf. Gutierrez, 844 F.3d at 808 

(accepting VE’s testimony as substantial evidence that plaintiff, who could not 

reach overhead, could work as a cashier even though the DOT listed “frequent 

reaching” as a requirement for the job, “[g]iven how uncommon it is for most 

cashiers to have to reach overhead”). Furthermore, among those order pickers 

1 Maxwell’s speculation that environmental conditions such as wetness or humidity 

might “constitute a hazard for an individual suffering from episodic dizziness in 

the work setting” is not a DOT conflict but a challenge to the ALJ’s RFC 

formulation, which Maxwell failed to raise before the district court or in his brief. 

Maxwell thus forfeits the issue on appeal. See Ford, 950 F.3d at 1158 n.12.
5 

whose work does involve occasional climbing, the DOT does not state that the 

pickers must climb ladders, ropes, or scaffolds; they may also be climbing stairs or 

ramps, for instance, which is not prohibited by Maxwell’s RFC. Cf. Gutierrez, 844 

F.3d at 808 (“[N]ot every job that involves reaching requires the ability to reach 

overhead.”). Therefore, there was no conflict between the DOT and the VE’s 

testimony that Maxwell could work as an order picker, even though the DOT 

includes “[c]limbing . . . occasionally” as a possible task.

2

 

Finally, Maxwell argues that the IJ failed to resolve conflicts between the 

VE’s testimony and certain vocational resources other than the DOT. This 

argument fails as we have specifically held the ALJ does not have an affirmative 

obligation to resolve such conflicts. See Shaibi v. Berryhill, 883 F.3d 1102, 1109–

10 (9th Cir. 2017). Further, if a claimant fails to challenge the VE’s testimony 

based on those other vocational resources during the administrative hearing, as 

here, the claimant forfeits the challenge. Id. at 1110.

AFFIRMED.

2 Even if there were a conflict, the ALJ’s failure to resolve it would be harmless 

error, given that the ALJ correctly found Maxwell could perform the dishwasher 

and laundry worker occupations. “[T]he court will not reverse an ALJ’s decision 

for harmless error, which exists when it is clear from the record that the ALJ’s 

error was inconsequential to the ultimate nondisability determination.” 

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation and internal 

quotation marks omitted).