NOT FOR PUBLICATION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 APPEALS
2 

as necessary to explain our decision.

I

The 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 nondisability 

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 supported 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. There is no reason to believe that the ALJ’s error was consequential to the listingseverity analysis. Neither could the error have infected the residual-functionalcapacity analysis, since that portion of the ALJ’s decision did not repeat the error, 

instead summarizing 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 an examining family practitioner and from a nonexamining medical advisor, but such opinions can qualify as substantial 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’s 
3 

interpretation of the record was not a “rational” one, which is all the substantial 

evidence 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 exists for him in the national economy, and so he is 

eligible for disability 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 would 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 consider Lashley’s criminal record.

AFFIRMED.