Tamara Lanham v. Kilolo Kijakazi ( 2023 )

FILED
NOT FOR PUBLICATION
MAY 4 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMARA ALYN LANHAM, No. 22-35399
Plaintiff-Appellant, D.C. No. 6:20-cv-01601-MC
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted April 20, 2023
Portland, Oregon
Before: RAWLINSON, BEA, and SUNG, Circuit Judges.
Tamara Lanham appeals the denial of her application for Social Security
benefits. We review the district court’s decision “de novo, and will disturb the
denial of benefits only if the decision contains legal error or is not supported by
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
substantial evidence.” Terry v. Saul, 998 F.3d 1010, 1012 (9th Cir. 2021) (citation
omitted).
1. Any error in incorporating the residual functional capacity (RFC)
limitation of “minimal reading and writing skills” into the hypothetical posed to
the Vocational Expert (VE) was harmless. See Carmickle v. Comm’r Soc. Sec.
Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining that an error is harmless
when it is “inconsequential to the ultimate nondisability determination”) (citations
omitted)). The VE identified two jobs in the national economy, small parts
assembler and electronics worker, which do not require reading or writing. And
Lanham conceded before the district court and at oral argument on appeal that she
could perform these jobs.
2. The ALJ did not err by declining to address the rebuttal job-numbers
evidence. See White v. Kijakazi, 44 F.4th 828, 836 (9th Cir. 2022) (“[A]n ALJ
need only resolve job-number inconsistencies if the competing job numbers
constitute significant probative evidence . . . .”) (citation, alteration, and internal
quotation marks omitted)). The generic job numbers contained in Lanham’s post-
hearing filing did not significantly undermine the VE’s expert opinion regarding
the number of available jobs. See Kilpatrick v. Kijakazi, 35 F.4th 1187, 1192–93
(9th Cir. 2022) (recognizing VEs as experts). In addition, Lanham did not cross-
2
examine the VE regarding the job-numbers estimates. See Shaibi v. Berryhill, 883
F.3d 1102, 1110 (9th Cir. 2017), as amended. “We recognize that a claimant will
rarely, if ever, be in a position to anticipate the particular occupations a VE might
list[,]” but a claimant may “inquir[e] as to the evidentiary basis for a VE’s
estimated job numbers, or inquir[e] as to” the consistency of the numbers. Id.AFFIRMED.
3