David George v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION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F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on other grounds.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 non-
public, 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.”).

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