NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID GEORGE, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 20-55383 

D.C. No. 5:19-cv-00703-DFM 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Douglas F. McCormick, Magistrate Judge, Presiding

Submitted February 4, 2021**

Pasadena, California

Before: GOULD, LEE, and VANDYKE, Circuit Judges.

David George (“George”) appeals from the district court’s order affirming 

the denial of his application for disability insurance benefits under the Social 

Security Act. In the proceedings below, an administrative law judge (“ALJ”) 

* 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

FEB 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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determined that George was not disabled under 42 U.S.C. § 1382c(a)(3)(A). 

Because the parties are familiar with the facts and procedural history of the case, 

we recite only those facts necessary to decide this appeal. We have jurisdiction 

under 28 U.S.C. § 1291. We affirm.

We review the district court’s order de novo and reverse only if the 

underlying ALJ decision “was not supported by substantial evidence in the record 

as a whole or if the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 

F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on other grounds.

George contends that the ALJ erred in weighing Dr. Loomis’ opinion, and 

that this error was harmful because it resulted in a residual functional capacity 

(“RFC”) that did not account for all of George’s limitations. In particular, George 

asserts that because Dr. Loomis opined that George was capable of “carrying out 

simple one to two step (unskilled) tasks,” the RFC finding that George could 

“perform simple repetitive tasks” was error. 

We disagree. Dr. Loomis’ opinion did not clearly limit George to only one 

to two step tasks. Instead, Dr. Loomis also wrote that George could perform nonpublic, simple repetitive tasks, which is entirely consistent with the RFC. Because 

Dr. Loomis opined that George could perform both kinds of tasks, the ALJ’s 

decision to adopt the broader limitation was reasonable. An RFC represents the 

most a claimant can do, not the least. 20 C.F.R. § 416.945(a). 
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Nor did the ALJ err when she did not explain why she found George capable 

of simple, repetitive tasks. Although the ALJ was required to explain why 

“significant probative evidence has been rejected,” Vincent ex rel. Vincent, 739 

F.2d 1393, 1395 (9th Cir. 1984) (citation omitted), here, the ALJ did not reject Dr. 

Loomis’ opinion; she resolved a conflict in his testimony. We have held that 

“[e]ven when the evidence is susceptible to more than one rational interpretation, 

we must uphold the ALJ’s findings if they are supported by inferences reasonably 

drawn from the record.” Molina, 674 F.3d at 1111.

Next, George contends that the ALJ erred in not resolving conflicts between 

the vocational expert’s (“VE”) testimony and the job descriptions listed in the 

Dictionary of Occupational Titles (“DOT”). The ALJ did not explicitly find 

George literate or illiterate. But in the hypotheticals that she posed to the VE, the 

ALJ asked the VE to assume illiteracy. Based on those hypotheticals, the VE 

testified that George could perform the roles of swatch clerk, bench assembler, and 

production assembler. George asserts that the language and reasoning levels 

required for these positions are inconsistent with a finding of illiteracy. 

Again, we disagree. First, there was no conflict between the VE’s testimony 

and the DOT because the ALJ did not find that George was illiterate. Instead, the 

ALJ found that George had “a marginal education and is able to communicate in 

English.” Marginal education is defined as “ability in reasoning, arithmetic, and 
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language skills which are needed to do simple, unskilled types of jobs.” 20 C.F.R. 

§ 416.964(b)(2). Illiteracy, by contrast, “means the inability to read or write.” 20 

C.F.R. § 416.964(b)(1). 

Second, any conflicts between George’s purported illiteracy and the 

reasoning and literacy requirements listed in the DOT for swatch clerk, bench 

assembler, and production assembler were not “obvious or apparent.” See 

Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016) (holding that “[f]or a 

difference between an expert’s testimony and the Dictionary’s listings to be fairly 

characterized as a conflict, it must be obvious or apparent,” which means that “the 

testimony must be at odds with the Dictionary’s listing of job requirements that are 

essential, integral, or expected”).

Finally, George asserts that we should remand his case so that the ALJ can 

address inconsistencies between the VE’s testimony and non-DOT sources, such as 

the Bureau of Labor Statistics’ Occupational Outlook Handbook (“OOH”), with 

respect to the number of jobs available in the national economy. George’s 

argument is forfeited because he did not raise it before the ALJ while represented 

by counsel. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017). Though

we recognized in Shaibi that a claimant will rarely be able to anticipate the 

occupations a VE might list at a hearing, we also held that a claimant must “raise 

the job-numbers issue in a general sense before the ALJ” to preserve his or her 
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challenge. Id. at 1110. Here, George did not challenge the VE’s job numbers at 

all.1

AFFIRMED.

1 Even if George had not waived this argument, it would fail on the merits. While 

the ALJ must investigate and resolve any apparent conflicts between the VE’s 

testimony and the DOT, the same is not true of the OOH or other sources. Shaibi, 

883 F.3d at 1109 n.6 (“That requirement was established in SSR 00-4p, a Social 

Security Ruling, only for the DOT and an associated document.”).