Maged Shaibi v. Nancy Berryhill

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAGED SALEH MOHAMMED No. 15-16849
SHAIBI,
Plaintiff-Appellant, D.C. No.
1:14-cv-00948-SAB
v.
NANCY A. BERRYHILL, Acting ORDER AND
Commissioner of Social AMENDED
Security, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Stanley A. Boone, Magistrate Judge, Presiding
Argued and Submitted May 18, 2017
San Francisco, California
Filed August 22, 2017
Amended February 28, 2018
Before: Marsha S. Berzon and Mary H. Murguia, Circuit
Judges, and Jon P. McCalla, District Judge.*
Order;
Opinion by Judge Berzon
*
The Honorable Jon P. McCalla, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
2 SHAIBI V. BERRYHILL
SUMMARY**
Social Security
The panel amended the opinion filed on August 22, 2017,
and affirmed the denial of an application for disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. § 401 et seq.
The panel held that the ALJ’s residual functional capacity
determination was supported by substantial evidence and was
not inconsistent with the opinions of two physicians regarding
claimant’s capability for interaction with colleagues. The
panel further held that a Social Security claimant who wishes
to challenge the factual basis of a vocational expert’s estimate
of the number of available jobs in the regional and national
economies must raise this challenge before administrative
proceedings have concluded in order to preserve the
challenge on appeal in federal district court. Because in this
case, the claimant did not challenge the accuracy of the
vocational expert’s job numbers during the administrative
proceedings, his claim was forfeited.
COUNSEL
Lawrence D. Rohlfing (argued), Santa Fe Springs, California,
for Plaintiff-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SHAIBI V. BERRYHILL 3
Daniel Paul Talbert (argued), Esther Kim, and Shea Lita
Bond, Special Assistant United States Attorneys; Deborah
Lee Stachel, Regional Chief Counsel, Region IX; Phillip A.
Talbert, United States Attorney; Social Security
Administration, San Francisco, California; for Defendant-
Appellee.
ORDER
The opinion filed on August 22, 2017, and published at
870 F.3d 874, is hereby amended.
The petition for panel rehearing and for rehearing en banc
is DENIED. The full court has been advised of the
suggestion for rehearing en banc, and no judge has requested
a vote. Fed. R. App. P. 35. No further petitions for rehearing
may be filed in this case.
OPINION
BERZON, Circuit Judge:
Maged Saleh Shaibi appeals the denial of his application
for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. In addition to
contesting the Administrative Law Judge’s (“ALJ”)
evaluation of medical opinions, a challenge we reject,
Shaibi’s case presents a familiar and recurring question:
whether a Social Security claimant who wishes to challenge
the factual basis of a vocational expert’s estimate of the
number of available jobs in the regional and national
4 SHAIBI V. BERRYHILL
economies must raise this challenge before administrative
proceedings have concluded. We hold that such a claimant
must, at a minimum, raise the issue of the accuracy of the
expert’s estimates at some point during administrative
proceedings to preserve the challenge on appeal in federal
district court.
I. Background
Shaibi suffers from a litany of physical and psychological
impairments, including lumbosacral degenerative disc
disease, depressive disorder, anxiety disorder, diabetes,
obesity, and osteoarthritis. He is limited in his ability to
perform the following tasks: sitting or standing for extended
periods of time; walking long distances without the use of a
cane; and carrying objects weighing ten pounds or more.
Until 2010, Shaibi worked as a cashier. Shaibi applied for
disability benefits in May of 2011, claiming that he was no
longer able to work because of depression, pain, insomnia,
anxiety, high cholesterol, and high blood pressure. His
application was denied in September of 2011. Shaibi then
requested a hearing before an ALJ. Shaibi’s hearing took
place on January 23, 2013.
At the hearing, the ALJ heard testimony from Shaibi as
well as from a vocational expert (“VE”). After the VE
testified that Shaibi could no longer continue his previous
work as a cashier, the ALJ asked the VE whether any jobs
were available in significant numbers in the regional and
national economies for a hypothetical claimant with Shaibi’s
limitations – one who could lift and carry up to ten pounds,
stand or walk for up to four hours (with use of a cane for
walking extended distances), sit without limitation, and
SHAIBI V. BERRYHILL 5
perform “simple routine tasks in a non-public setting with
occasional interaction with coworkers.” The VE responded
that such a claimant could perform sedentary, unskilled work,
and cited three representative occupations: “leaf tier,”
“unskilled ampoule sealer,” and “unskilled weight tester,
paper.”1
The VE also testified that those three occupations existed
in significant numbers in the regional and national
economies. He stated that the “leaf tier” position represented
5,236 jobs in California and 48,438 nationwide; that the
occupation of “ampoule sealer” represented 3,087 jobs in
California and 22,259 nationwide; and that the occupation of
“unskilled weight-tester, paper” represented 1,539 jobs in
California and 13,496 nationwide.
Shaibi’s attorney stipulated to the VE’s qualifications as
an expert. Although he cross-examined the VE briefly, he did
not suggest that the VE’s job estimates were inaccurate, nor
did he inquire as to the evidentiary basis for those job
numbers. The ALJ inquired whether the VE’s testimony was
consistent with the DOT; the VE answered that it was.
In addition to the testimony adduced at the hearing, the
ALJ considered the administrative record, including the
medical records and opinions of several physicians. With
respect to Shaibi’s mental and social impairments, the ALJ
1
The VE cited corresponding title codes in the Dictionary of
Operational Titles (“DOT”) for each occupation. For the “leaf tier”
occupation, the VE cited code number 529.687-138, corresponding to the
title of “Leaf Tier - Tobacco.” For the occupation of “ampoule sealer,”
the VE cited code number 559.687-014. For the occupation of “unskilled
weight tester-paper,” the VE cited code number 539.485-010,
corresponding to the title of “Weight Tester (paper and pulp).”
6 SHAIBI V. BERRYHILL
focused primarily on the opinions of two physicians, Dr.
Roger Izzi and Dr. Laura Lochner.
Dr. Izzi examined Shaibi and performed a consultative
psychiatric evaluation on July 23, 2011, after Shaibi had filed
for disability benefits. Dr. Izzi diagnosed Shaibi with
depressive disorder and post-traumatic stress disorder. He
gave Shaibi a score of 68 on the Global Assessment of
Functioning (“GAF”) test. According to the Diagnostic and
Statistical Manual of Mental Disorders IV, a GAF score of 68
reflects that the patient has “[s]ome mild symptoms . . . or
some difficulty in social, occupational or school functioning
. . . but [is] generally functioning pretty well, has some
meaningful interpersonal relationships.” Dr. Izzi noted that
Shaibi could perform simple, repetitive tasks in the
workplace, but would be “moderately limited” in terms of his
ability to get along with peers and supervisors because of a
mood disorder. Nevertheless, Dr. Izzi concluded that Shaibi
appeared capable of “responding to usual work session
situations regarding attendance and safety issues” and
“dealing with changes in a routine work setting.”
Dr. Lochner did not examine Shaibi, but she did conduct
a Mental Residual Functional Capacity (“MRFC”)
Assessment based on the medical evidence in Shaibi’s file.
In Section 1 of the MRFC, Dr. Lochner completed a
“Summary Conclusions” worksheet, in which she indicated
that Shaibi was “not significantly limited” with respect to
many mental activities, including his ability to carry out very
short and simple instructions; to work in coordination with or
proximity to others; to ask simple questions or request
assistance; to accept instructions and respond appropriately
to criticism from supervisors; to get along with coworkers or
peers without distracting them or exhibiting behavioral
SHAIBI V. BERRYHILL 7
extremes; and to maintain socially appropriate behavior and
basic standards of cleanliness. With respect to social
interaction, Dr. Lochner concluded that Shaibi was
“moderately limited” in terms of his ability to interact with
the general public, but was not so limited with respect to his
interactions with coworkers. Dr. Lochner found that Shaibi’s
difficulties in maintaining social functioning were “mild”
overall. She noted that Shaibi could relate to others on a
“superficial work basis” and could “adapt to a work
situation.” Dr. Lochner also opined that Shaibi could perform
“semi-skilled” work and was not limited to “simple, repetitive
tasks.”
In determining Shaibi’s residual functional capacity, the
ALJ gave “significant weight” to the opinions of Dr. Izzi and
Dr. Lochner, and concluded that Shaibi had “some mental
difficulty, and that it is affected by the pain his physical
condition causes.” The ALJ concluded that the only
meaningful difference between the opinions of Dr. Izzi and
Dr. Lochner concerned whether Shaibi was capable of
performing semi-skilled work. The ALJ accepted the opinion
of Dr. Izzi in that regard and found that Shaibi was limited to
the performance of “simple, routine tasks in a non-public
setting, with occasional interaction with coworkers.” The
ALJ also credited the VE’s testimony that Shaibi could
perform the three representative jobs of “leaf tier,” “ampoule
sealer,” and “weight tester,” and therefore concluded that
Shaibi was capable of successfully adjusting to other work
that existed in significant numbers in the national economy.
Based on these findings, the ALJ held that Shaibi was not
entitled to disability benefits.
Shaibi appealed to the Social Security Appeals Council,
which affirmed the ALJ’s decision. He subsequently
8 SHAIBI V. BERRYHILL
appealed to the United States District Court for the Eastern
District of California, alleging two errors by the agency.
First, Shaibi argued that the ALJ’s residual functional
capacity determination, with respect to Shaibi’s ability to
interact with coworkers, was not supported by substantial
evidence. Second, Shaibi alleged for the first time that the
ALJ erred in crediting the VE’s testimony regarding the
number of existing jobs in the national economy for the three
representative occupations the VE cited at the hearing,
because the VE’s job estimates were allegedly contradicted
by the County Business Patterns (“CBP”) published by the
U.S. Census Bureau, and by the Occupational Outlook
Handbook (“OOH”) published by the Bureau of Labor
Statistics, as well as by common sense.2 Shaibi also proposed
that the ALJ erred in accepting the VE’s testimony with
regard to Shaibi’s fitness to work as a “weight tester, paper”
because the required reasoning level listed in the DOT
exceeded Shaibi’s residual functional capacity.
The district court affirmed the denial of benefits. Shaibi
timely appealed.
2
Shaibi observes, for example, that common sense suggests that only
a handful of “leaf tier” jobs, at most, exist in California, as according to
the DOT, the “leaf tier” position exists only within the tobacco industry,
and that industry has a small footprint in California. See DICOT 529.687-
138 (G.P.O.), 1991 WL 674769 (leaf tier “[t]ies tobacco leaves in hands
(bundles) to facilitate processing: Selects loose leaves for hand and
arranges leaves with butt ends together. Winds tie leaf around butts and
pulls end of tie leaf into hand.”).
SHAIBI V. BERRYHILL 9
II. Standard of Review
This court reviews de novo a district court’s judgment
upholding the denial of Social Security benefits. Berry v.
Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). This court will
reverse “only if the ALJ’s 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). “Substantial evidence”
is defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. at
1121 (internal quotation omitted). “The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive.” 42 U.S.C.
§ 405(g).
III. Discussion
When considering a claim for disability benefits, the
Social Security Administration is required to conduct a now-
familiar five-step sequential evaluation process to determine
whether a claimant is disabled and eligible for benefits. See
20 C.F.R. § 404.1520(a). First, the agency must consider the
claimant’s current work activity. Second, the agency must
consider the medical severity of the claimant’s impairments.
Third, the agency must determine whether the severity of
those impairments is sufficient to meet, or medically equal,
the criteria of an impairment listed in three of the Social
Security Act’s implementing regulations, published at
20 C.F.R. §§ 404.1520(d), 404.1525-26. Fourth, the agency
determines whether the claimant can perform past relevant
work in light of the claimant’s residual functional capacity.
Fifth, the agency assesses whether the claimant can make an
adjustment to other work that exists in significant numbers in
10 SHAIBI V. BERRYHILL
the national economy, based on the claimant’s residual
functional capacity.
“The claimant carries the initial burden of proving a
disability in steps one through four of the analysis. However,
if a claimant establishes an inability to continue her past
work, the burden shifts to the Commissioner in step five to
show that the claimant can perform other substantial gainful
work.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)
(citation omitted). Shaibi alleges that, between the third and
fourth steps of the sequential evaluation process, the ALJ
erred in assessing his residual functional capacity by ignoring
or discounting the opinions of Dr. Izzi and Dr. Lochner.
Shaibi further alleges that, at the fifth step of the process, the
ALJ improperly credited the job numbers the VE proffered.
We address these arguments in turn.
A. The ALJ’s Residual Functional Capacity
Determination Was Supported By Substantial
Evidence.
Shaibi first protests that the ALJ’s residual functional
capacity determination “omitted” or “rejected” the limitations
Dr. Izzi and Dr. Lochner identified. Essentially, the argument
is that the ALJ mistakenly evaluated the opinions of the two
physicians by gleaning from the “qualitative” limitations the
two doctors identified – that Shaibi would be “moderately
limit[ed]” in his interactions with coworkers, and that he
could “relate to others on a superficial work basis” – a
SHAIBI V. BERRYHILL 11
“quantitative” limitation, that Shaibi was capable of
“occasional” interaction with coworkers.3
We find no obvious inconsistency between the two
physicians’ opinions regarding Shaibi’s capability for
interaction with colleagues and the ALJ’s residual functional
capacity determination. Ultimately, the ALJ found that
Shaibi was “limited to simple routine tasks in a non-public
setting, with occasional interaction with coworkers.” The
ALJ evidently contemplated that Shaibi’s social limitations
were significant enough that he was incapable of frequent or
sustained interactions with coworkers, but not sufficiently
debilitating that Shaibi could never interact with colleagues
or supervisors. That conclusion is consistent with Dr. Izzi’s
opinion that Shaibi’s social limitations were “moderate,”
rather than mild or marked.
With regard to Dr. Lochner’s opinion, Shaibi argues that
the ALJ ignored her conclusion that he was limited to
“superficial contact” with coworkers. Shaibi misstates Dr.
Lochner’s opinion; in fact, she wrote that Shaibi could “relate
to others on a superficial work basis” (emphasis added). The
ALJ could reasonably have concluded that, given Shaibi’s
ability to “relate to others on a superficial work basis,” he
could perform essential workplace functions, even if he could
not easily develop deeper emotional bonds with his
coworkers.
3
Contrary to Shaibi’s representation that the ALJ ignored the
opinions of Dr. Izzi and Dr. Lochner, the ALJ’s decision gave “significant
weight” to both opinions. The ALJ cited with approval specific language
in both opinions – Dr. Izzi’s opinion that Shaibi’s mood disorder
“moderately limits” Shaibi’s ability to get along with peers or supervisors,
and Dr. Lochner’s opinion that Shaibi could relate to others “on a
superficial work basis.”
12 SHAIBI V. BERRYHILL
Such a conclusion is all the more reasonable in light of
the “Summary Conclusions” worksheet that Dr. Lochner
submitted along with her written comments. On that
worksheet, she indicated that Shaibi was “not significantly
limited” in terms of his ability to work in coordination with
or proximity to others; to ask simple questions or request
assistance; to accept instructions and respond appropriately
to criticism from supervisors; to get along with coworkers or
peers without distracting them or exhibiting behavioral
extremes; or to maintain socially appropriate behavior and
basic standards of cleanliness. Viewed in the context of her
specific conclusions on that worksheet, Dr. Lochner’s
statement that Shaibi could “relate to others on a superficial
work basis” simply confirms that she believed Shaibi could
communicate with coworkers and supervisors as necessary.
Shaibi’s briefing also makes much of the Social Security
Administration’s policy guidance documents in its Program
Operations Manual System (“POMS”). Shaibi asserts that the
POMS guidance lists fourteen mental or social functions
essential for unskilled work, and that the ALJ ignored Dr.
Izzi’s opinion that Shaibi was moderately limited with respect
to each of these critical requirements.
POMS guidance is not binding either on the ALJ or on a
reviewing court. Lockwood v. Comm’r Soc. Sec. Admin.,
616 F.3d 1068, 1073 (9th Cir. 2010). Moreover, contrary to
Shaibi’s representation, Dr. Izzi did not make specific
findings with respect to any of the fourteen mental abilities
Shaibi cites in his briefing. Dr. Lochner, however, did
address each of the mental capacities that Shaibi proposes are
essential for unskilled work, and indicated that Shaibi was not
significantly limited with respect to any of them.
SHAIBI V. BERRYHILL 13
At bottom, Shaibi argues that the ALJ could have come to
a different conclusion in weighing the opinions of Dr. Izzi
and Dr. Lochner, had the ALJ interpreted the words
“moderate” and “substantial” differently. But we are to
affirm the ALJ’s findings of fact if they are supported by
substantial evidence and if the ALJ’s decision was free of
legal error. 42 U.S.C. § 405(g); see also Gutierrez v. Colvin,
844 F.3d 804, 807 (9th Cir. 2016). “Where evidence is
susceptible to more than one rational interpretation, it is the
ALJ’s conclusion that must be upheld.” Burch, 400 F.3d at
679. As we cannot say that the ALJ’s interpretation of the
available evidence was not rational, the ALJ’s conclusions
were supported by substantial evidence.
B. Shaibi Forfeited His Challenge To The VE’s Job
Numbers.
We turn next to whether the ALJ improperly relied on the
VE’s job numbers when he found that Shaibi could perform
work that existed in significant numbers in the national
economy.
At step five of the sequential evaluation process, an ALJ
must determine whether a disability claimant who cannot
perform past relevant work is nevertheless capable of
performing other work that exists in significant numbers in
the national economy. 20 C.F.R. § 404.1520(a). Here, the
ALJ presented to the VE the case of a hypothetical claimant
with limitations matching Shaibi’s. The VE responded that
such an applicant could perform three relevant jobs: “leaf
tier,” “unskilled ampoule sealer” and “unskilled weight-
tester, paper.” The VE also testified that 5,236 “leaf tier”
jobs existed in California and 48,438 existed nationwide, and
that the “ampoule sealer” occupation represented 3,087 jobs
14 SHAIBI V. BERRYHILL
in California and 22,259 nationwide.4 Id. The VE did not
testify as to the evidentiary basis for his estimates. Nor did
Shaibi or his attorney cross-examine the VE as to the
accuracy of those estimates, or challenge that accuracy before
the Appeals Council.
On appeal in federal district court, Shaibi argued for the
first time that the VE’s job estimates “deviated from listed
sources of administrative notice.” Shaibi cites the CBP and
the OOH, both of which are listed, along with the DOT, as
sources of which the Social Security Administration will take
administrative notice. 20 C.F.R. § 404.1566(d). He proposes
that the ALJ should have taken administrative notice of the
CBP and OOH sua sponte; compared the VE’s job numbers
against the economic data in the CBP and the OOH;
concluded that the VE’s job numbers could not have been
accurate; and consequently rejected the VE’s numbers as not
supported by substantial evidence. Shaibi provides no
explanation, however, for his failure to raise the issue during
administrative proceedings.
Questions regarding the reliability of a vocational expert’s
job numbers, or the evidentiary basis for those numbers, are
familiar and recurring in our circuit and in our sister circuits.
See, e.g., Brown v. Colvin, 845 F.3d 247, 254 (7th Cir. 2016);
see also Wright v. Berryhill, No. 15-55282, 2017 WL
2645298, at *1 (9th Cir. June 20, 2017); Anders v. Berryhill,
No. 15-4181, 2017 WL 2179109, at *5 (10th Cir. Apr. 18,
2017); Lemauga v. Berryhill, No. 15-56611, 2017 WL
4
Shaibi also challenges the ALJ’s finding that he could perform the
work of a “weight-tester, paper.” As discussed below, although Shaibi’s
argument is meritorious in this respect, we conclude that any such error
was harmless.
SHAIBI V. BERRYHILL 15
1208664, at *1 (9th Cir. Apr. 3, 2017); Welsh v. Comm’r
Soc. Sec., 662 F. App’x 105, 109 (3d Cir. 2016); Guiton v.
Colvin, 546 F. App’x 137, 141–43 (4th Cir. 2013). To this
point, however, we have issued no precedential opinion
concerning when a Social Security claimant must, absent a
showing of good cause, challenge the evidentiary basis of a
vocational expert’s job numbers to preserve the issue for
litigation in the district court. We now hold that when a
claimant fails entirely to challenge a vocational expert’s job
numbers during administrative proceedings before the
agency, the claimant forfeits such a challenge on appeal, at
least when that claimant is represented by counsel.5
Specifically, our holding encompasses challenges based on an
alleged conflict with alternative job numbers gleaned from
the CBP or the OOH.
Several previous decisions compel our holding today,
particularly Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999),
as amended (June 22, 1999). Meanel held that “at least when
claimants are represented by counsel, they must raise all
issues and evidence at their administrative hearings in order
to preserve them on appeal.” Id. at 1115. We so held in light
of the fundamental principle that an agency, its experts, and
its administrative law judges are better positioned to weigh
conflicting evidence than a reviewing court. “The ALJ,
rather than this Court, was in the optimal position to resolve
the conflict between Meanel’s new evidence and the
statistical evidence provided by the VE.” Id. That principle
applies here with force.
5
Shaibi has not shown good cause, or suggested any reason at all, for
his failure to challenge the job numbers during administrative proceedings.
16 SHAIBI V. BERRYHILL
Shaibi contends that Meanel was overruled by the
Supreme Court’s subsequent holding that “[c]laimants who
exhaust administrative remedies need not also exhaust issues
in a request for review by the Appeals Council in order to
preserve judicial review of those issues.” Sims v. Apfel,
530 U.S. 103, 112 (2000). Sims does not control this case.
Sims concerned only whether a claimant must present all
relevant issues to the Appeals Council to preserve them for
judicial review; the Court specifically noted that “[w]hether
a claimant must exhaust issues before the ALJ is not before
us.” Id. at 107. Here, Shaibi did not present the job-numbers
issue before the ALJ or the Appeals Council. In light of the
Court’s express limitation on its holding in Sims, we cannot
say that that holding is “clearly irreconcilable” with our
decision in Meanel, and Meanel therefore remains binding on
this court with respect to proceedings before an ALJ. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc).
Our holding is consistent with the plain language of the
Social Security Act. The Act states that a reviewing court
presented with new evidence may remand to the agency for
consideration of that evidence, but only upon a showing of
“good cause for the failure to incorporate such evidence into
the record in a prior proceeding.” 42 U.S.C. § 405(g). Not
only has Shaibi failed to demonstrate good cause, he has
provided no explanation at all for his failure to challenge the
VE’s job numbers during administrative proceedings.
Moreover, we can find no case, regulation, or statute
suggesting that an ALJ must sua sponte take administrative
notice of economic data in the CBP or the OOH. It is true
that an ALJ is required to investigate and resolve any
apparent conflict between the VE’s testimony and the DOT,
SHAIBI V. BERRYHILL 17
regardless of whether a claimant raises the conflict before the
agency. See SSR 00-4P; see also Lamear v. Berryhill,
865 F.3d 1201, 1206–07 (9th Cir. 2017); Massachi v. Astrue,
486 F.3d 1149, 1152–54 (9th Cir. 2007). But Shaibi cites to
no authority suggesting that the same is true for the CBP and
OOH.6 Our precedent holds, instead, that an ALJ may rely on
a vocational expert’s testimony concerning the number of
relevant jobs in the national economy, and need not inquire
sua sponte into the foundation for the expert’s opinion.
Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005);
Johnson v. Shalala, 60 F.3d 1428, 1435–36 (9th Cir. 1995).
We recognize that a claimant will rarely, if ever, be in a
position to anticipate the particular occupations a VE might
list and the corresponding job numbers to which a VE might
testify at a hearing. We do not suggest that a claimant must,
within minutes of a VE’s initial testimony, cross-examine a
VE with specific alternative job calculations based on the
CBP, OOH, or other published sources. It is enough to raise
the job-numbers issue in a general sense before the ALJ. A
claimant may do so by inquiring as to the evidentiary basis
for a VE’s estimated job numbers, or inquiring as to whether
those numbers are consistent with the CBP, OOH, or other
6
The DOT, CBP, and OOH are all listed in 20 C.F.R. § 404.1566(d)
as data sources of which the Social Security Administration “will take
administrative notice.” It does not follow that an ALJ must in every case
reconcile conflicts sua sponte between each of those data sources and the
VE’s testimony. That requirement was established in SSR 00-4p, a Social
Security Ruling, only for the DOT and an associated document. And
unlike the DOT, which is comprised of self-contained descriptions of the
requirements for performance of various jobs, using the job distribution
information in the CBP and OOH requires information and inferences not
contained in the documents themselves and so not amenable to an ALJ’s
sua sponte consideration.
18 SHAIBI V. BERRYHILL
sources listed in 20 C.F.R. § 404.1566(d). If that is done, an
ALJ, on request, ordinarily would permit the claimant to
submit supplemental briefing or interrogatories contrasting
the VE’s specific job estimates with estimates of the
claimant’s own. See Brault v. Soc. Sec. Admin., Comm’r,
683 F.3d 443, 451 (2d Cir. 2012). If the ALJ declines to do
so, a claimant may raise new evidence casting doubt on a
VE’s job estimates before the Appeals Council, provided that
evidence is both relevant and “relates to the period on or
before the ALJ’s decision.” See Brewes v. Comm’r of Soc.
Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012).
Here, however, although the ALJ was in the best position
to evaluate and resolve any conflicting evidence concerning
the number of jobs in relevant occupations, Shaibi did not
even obliquely suggest that the VE’s job estimates might be
unreliable at any point during administrative proceedings.
His claim is therefore forfeited.7
7
Shaibi also proposes that the ALJ erred in concluding that Shaibi
could perform the work of an “unskilled weight tester – paper.” Shaibi
correctly observes that although the DOT requires a reasoning level of 3
for such a position, the ALJ found that Shaibi was limited to performing
“simple, repetitive tasks.” We have held that “there is an apparent conflict
between the residual functional capacity to perform simple, repetitive
tasks, and the demands of Level 3 Reasoning,” and that an ALJ must
recognize and resolve such a conflict during administrative proceedings.
Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015). Any error in this
regard was, however, ultimately harmless, as the ALJ also found that the
“leaf tier” occupation represented 5,236 jobs in California and 48,438
nationwide, and that the “ampoule sealer” occupation represented 3,087
jobs in California and 22,259 nationwide. We have held that 2,500 jobs
in California, or 25,000 nationwide, constitute a significant amount of
work in the regional and national economies. Gutierrez v. Comm’r of Soc.
Sec., 740 F.3d 519, 527–29 (9th Cir. 2014).
SHAIBI V. BERRYHILL 19
CONCLUSION
For the foregoing reasons, we AFFIRM the district
court’s denial of Shaibi’s appeal.