Refugio Vargas v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REFUGIO VARGAS,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 17-16236
No. 1:15-CV-992 GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Submitted August 20, 2018**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Refugio Vargas appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Vargas’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
* 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
AUG 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir.
2016), and we affirm.
Substantial evidence supports the Administrative Law Judge’s (“ALJ”)
conclusion at Step Four that Vargas’s experience as a packager qualified as past
relevant work. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). We do
not address the Commissioner’s contention that Vargas waived his challenge to
this finding, because the Commissioner did not raise this argument in the district
court and therefore has waived it on appeal. See Conn. Gen. Life Ins. Co. v. New
Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir. 2003).
However, the ALJ erred at Step Four by failing to recognize and resolve the
conflict between the description in the Dictionary of Occupational Titles (“DOT”)
of the position of packager as entailing frequent exposure to atmospheric
conditions, DOT 920.587-018, 1991 WL 687916 (2016), and Vargas’s RFC, which
requires him to “avoid moderate exposure to fumes, odors, dust, gas, and poor
ventilation.” Because the ALJ did not make the requisite factual findings in support
of the conclusion that Vargas could perform his past work as a packager despite
this conflict, the ALJ’s Step Four finding lacks substantial evidentiary support. See
Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001).
Nevertheless, in light of the ALJ’s alternative findings at Step Five that
Vargas could perform the position of kitchen helper and that a significant number

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of these positions exist in the national economy, any error at Step Four was
harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The record
does not support Vargas’s contention that the vocational expert, in responding to
the ALJ’s hypothetical, misconstrued Vargas’s limitation as including only over-
shoulder reaching by his non-dominant arm, rather than reaching at shoulder level
or above. Nor did the ALJ err by failing to resolve a conflict between the DOT’s
requirements for kitchen helper and the vocational expert’s testimony that Vargas
could perform this position, because any such conflict was not “obvious or
apparent.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (ALJ need only
resolve conflicts between expert testimony and the DOT that are obvious or
apparent).
AFFIRMED.

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