Mark Shane Lashley v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION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

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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 listing-
severity 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 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 non-
examining 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

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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.

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