NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRAIG A. BUCKINS, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 16-17097 

D.C. No. 2:15-cv-01011-EFB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Edmund F. Brennan, Magistrate Judge, Presiding

Submitted November 30, 2017**

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

Craig Buckins appeals the district court’s decision affirming the 

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

benefits and supplemental security income under Titles II and XVI of the Social 

 

* 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

DEC 13 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, 

Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we affirm.

The ALJ erred in relying on the vocational expert’s testimony that Buckins 

could perform light work as a housekeeping cleaner and ticket taker even though 

the ALJ assessed that he retained the residual functional capacity to reach only 

occasionally in front and laterally with his right, non-dominant arm and could 

engage only in simple, repetitive, routine tasks. There was an apparent conflict 

between the expert’s testimony and the Dictionary of Occupational Titles

(“DOT”), which states that the occupation of housekeeping cleaner involves 

frequent reaching and that the occupation of ticket seller requires constant 

reaching. See Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016). Buckins 

could use his left arm, but, as a matter of common experience, most people would 

think of housekeeping cleaning and ticket taking as occupations performed with 

two arms. See Lamear v. Berryhill, 865 F.3d 1201, 1205-06 (9th Cir. 2017) 

(holding that court could not say that, “based on common experience, it [was] 

likely and foreseeable” that the claimant, with limitations on his abilities with his 

left hand, could perform the duties of an office helper, mail clerk, or parking lot 

cashier). For the occupation of ticket taker, there was also an apparent conflict 

between the vocational expert’s testimony and the DOT’s statement that this 

occupation requires Level 3 Reasoning. See Zavalin v. Colvin, 778 F.3d 842, 847 
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(9th Cir. 2015) (holding that there was an apparent conflict between the RFC to 

perform simple, repetitive tasks and the demands of Level 3 Reasoning). The ALJ 

therefore erred in failing to ask the vocational expert to resolve these conflicts. See 

Gutierrez, 844 F.3d at 807.

Buckins did not waive the issue of a conflict between the VE’s testimony 

and the DOT by failing to raise the issue before the ALJ, who had an affirmative 

duty to inquire about any apparent conflict between the vocational expert’s 

testimony and the DOT. See Lamear, 865 F.3d at 1206. The ALJ’s errors as to 

both the housekeeping cleaner and the ticket taker occupations nonetheless were 

harmless because the vocational expert and the ALJ identified three alternative, 

sedentary occupations – envelope addresser, call-out operator, and surveillance 

system monitor.

Buckins does not challenge the ALJ’s finding that he could perform the light 

occupation of children’s attendant, but, as he notes, the 5,104 jobs available in that 

occupation do not constitute a significant number of jobs in the national economy. 

See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014) 

(concluding that it was a “close call” but 25,000 national jobs was significant). 

The total 25,904 jobs available in these occupations plus the occupation of 

children’s attendant amount to a significant number of jobs in the national 

economy. See id. The ALJ’s errors therefore were inconsequential to the ultimate 
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nondisability determination, and harmless. See Brown-Hunter, 806 F.3d at 492 

(defining harmless error).

AFFIRMED.