NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK SHANE LASHLEY,
Plaintiff

- Appellant,

v. KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant

- Appellee. No. 22

- 15500
D.C. No. 2:18

- cv - 03013

- MCE

- DB

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding
Submitted June 20, 2023 * *

Before : WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges. Mark Lashley appeals from the district court’s decision affirming the
Commissioner of Social Security’s denial of disability benefits for the period prior
to March 2016. Because the facts are known to the parties, we repeat them here only

* 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

JUN 21 2023 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 as necessary to e xplain our decision.
I
T he ALJ undisputedly erred in summarizing the opinion of Dr. Schmitter

. But

“ [w] e may affirm the ALJ’s decision even if the ALJ made an error, so long as the error was harmless, meaning it was inconsequential to the ultimate nondisab ility
determination.” Ford v. Saul , 950 F.3d 1141, 1154 (9th Cir. 2020) (cleaned up). The plaintiff bears the burden of showing harm. See Molina v. Astrue , 674 F.3d 1104, 1111 (9th Cir. 2012). Lashley has not met his burden. The ALJ ’s misstatement support e d the conclusion that Lashley did not meet the listing

- severity threshold

. But other
evidence also supported that conclusion , and Lashley presents no argument against
it

. T here is no reason to believe that the ALJ’s error was consequential to the listing

s everity analysis. Neither could the error have infected the residual

- functional

capacity analysis, since that portion of the ALJ’s decision did not repeat the error,
instead summariz ing Dr. Schmitter’s opinion correctly. Finally, the ALJ’s error did
not leave the decision without substantial evidence. Lashley objects to consideration of medical opinions from a n examining family practitioner and from a non

examining medical advisor, but such opinions can qualify as substant ial evidence.
See Tonapetyan v. Halter , 242 F.3d 1144, 1149 (9th Cir. 2001). Lashley disagrees with the ALJ’s reading of the record, but he does not show that the ALJ’s3 interpretation of the record was not a “rational” one, which is all the substantial
evi dence standard requires. Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005).
II Lashley further argues that, due to employment discrimination against felons,

no substantial gainful work exist s for him in the national economy, and so he is eligible for di sability benefits. But the applicable statute asks whether, “considering his age, education, and work experience,” a claimant can “engage in any . . . kind of substantial gainful work which exists in the national economy, regardless of

. . . whether he wou ld be hired if he applied for work .” 42 U.S.C. § 423(d)(2)(A) (emphasis added). The final clause clearly establishes that employment discrimination is irrelevant for the disability benefits determination. The ALJ therefore did not err in declining to consi der Lashley’s criminal record.
AFFIRMED.