F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A G E D S A L E H M O H A M M E D S H A I B I , Plaintiff-Appellant

,

v.

N A N C Y A. B E R

R Y H I L L , Acting Commissioner of Social Security

,

Defendant-Appellee. No. 15-16849

D.C. No. 1:14-cv-00948- SAB

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Stanley A. B oone, Mag istrate J udg e, Presiding

Arg ued and Submitted May 18, 2017 San F rancisco, California

F iled Aug ust 22, 2017

B efore: Marsha S. B erz on and Mary H . Murg uia, Circuit J udg es, and J on P. McCalla, District J udg e. *

Opinion by J udg e B e rz on

* T h e H o n orab le J o n P

. McCalla, Sen io r Un ited States District J u dg e f o r th e W estern District o f T en n essee, sittin g b y

d esig n atio n

.S H A I B I V

. B E R R Y H I L L 2

SUMMARY * *

Disability Insurance Benef its

The panel affi rmed the d enial o f an application for d i s a b i lity insurance benefits under Title I I of the Social Security Act, 42 U.S.C. § 401 et seq

.

The p a nel held that the AL J ’s residual functional determination was supported by substantial evidence and was not incon s i stent with the opinions of two phy sicians reg arding claimant ’s c a pability f

or interaction w ith colleag ues. The panel further held that a Social Security claimant who wishes
to challeng e the factual basis of a vocational ex pert’s estimate of the nu m b e r o f available jobs in the r eg ional a nd n ational economies must raise this challeng e before a d m inistrative proceeding s h ave c o n cl uded in order to preserve the challeng e on appeal in federal district court. B ecause in this
case, the claimant did n ot challeng e the accuracy of the vocational ex pert’s job numbers during the admi n istrative proceeding s, his claim was waived.

COUNSEL

L awrence D. Rohlfing (arg ued), Santa F e Spring s, California, for Plaintiff-Appellant.

Daniel Paul Talbert (arg ued) and Esther Kim

, Special Assistant United States Attorney s; Deborah L ee Stachel,

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S H A I B I V

. B E R R Y H I L L 3

Acting Reg ional Chief C o unsel, Reg ion I X; Phillip A

. Talbert, Act i n g United States Attorney ; Social Security Administration, San F rancisco, California; for D efendantAppellee.

OP INION

B ERZ ON, Circuit J udg e :

Mag e d Saleh Shaibi appeals the denial of his a pplication for disab i l i ty insurance benefits under Title I I of the Social Securit y A c t , 4 2 U.S.C. § 4 01 et seq

. I n addition to contesting the Administr a t ive L aw J u d g e’s (“AL J ”) evaluation of medical opin ions, a challeng e we reject, Shaibi’s case presents a familiar a nd recu r r ing question: whether a Social Security claimant w ho wishes to challeng e the factual basis of a v o cational ex pert’s esti m a t e o f the number o f a v ailable jobs in the reg ional and n ational economies must raise this challeng e before adm i n i strative proceeding s have concluded. W e hold that such a c l a imant must, at a minimum, raise the issue of the a c c u racy of the

ex p ert’s estimates at some p oint during administrative proceeding s to preserve the challeng e on a p p e a l in federal district court.

I. Background

Shaibi suffers f

rom a litany of phy sical and psy cholog ical impairments, including lumbosacral deg enerative disc d i sease, depressive disorder, anx iety disorder, diabetes, obesity

, and osteoarthritis. H e i s limited in his ability to perform the following tasks: sitting or standing for ex tendedS H A I B I V

. B E R R Y H I L L 4

periods o f time; w a l k ing long distances without the u se of a cane; and carry

ing objects weig hing ten pounds or more.

Until 2 010, Shaibi worked a s a cashier. Shaibi applied for disability benefits in May of 2 011, claiming that he was no long er able to work because of depression, pain, ins o mnia,

anx i e t y , h ig h cholesterol, and hig h blood pressure. His application w as denied in S ep t e m ber of 2011. Shaibi then requested a hearing before a n A L J

. Shaibi’s hearing took place on J anuary

23, 2013.

A t the hearing

, the AL J heard testimony from Shaibi a s well a s from a vocational ex pert (“VE”). A fter the VE
t estified that Shaibi could no long er continue his p revio u s work as a cashier, the AL J a s k e d the VE whether any jobs

were available in sig nificant numbe rs i n the reg ional a nd national economies for a hy pothetical c laimant with Shaibi’s l i mitations – one who could lift and carry up to ten p o u n d s , stand or walk for up to four hours (wit h u s e of a cane for walking ex tended distances), sit w ithout l i m i tation, a nd perform “simple routine tasks in a no n

- p u b lic setting with occasional interaction with c oworkers.” T h e VE responded that such a claimant could p erform sedentary

, unskilled work, and cited three representative occupations: “leaf tier

, ” “unskilled ampoule sealer,” a nd “unskilled w eig ht tester, paper.” 1

1 T h e VE cited co rresp o n d i n g title co d es in th e Dictio n ar y o f Op eratio n al T itles (“ DOT ”) f o r each o ccu

patio n

. F o r t h e “ leaf t ier”

o ccu p atio n , th e VE cited co de n u m ber 5 2 9 .6 8 7- 1 3 8
, co rresp o n din g t o th e title o f “ L eaf T ier

- T o b acco .” Fo r th e o cc u p atio n o f “ am

p o u le sealer,” th e VE cited co d e n

u m b er 55 9 .6 8 7

- 01 4

. F o r th e o ccu p atio n o f “ u n sk i lled

w eig h t tester- p ap er,” t h e VE ci t e d co de n u m b er 5 3 9 .4 8 5

- 0 1 0
, co rresp o n d in g to th e title o f “ W eig h t T ester (p ap er an d p u lp ).”S H A I B I V

. B E R R Y H I L L 5

The VE a lso testified that those three occupations e x isted in sign i f i cant numbers in the reg ional and n ational economies. He stated that the “leaf tier” position represented 5,236 jobs in California and 48,438 n ationwide; th a t the

o c c upation of “ampoule sealer” represented 3,087 jobs i n California and 22,259 nationwide; and that the occupation o f “unskilled weig ht-tester, paper” r epresented 1,539 j o b s in California and 13,496 nationwide.

Shaibi’s attorney

stipulated to the VE’s qualifications as

an ex pert. A lthoug h h e cross-ex amined the VE briefly

, he did
not sug g est that the VE ’ s job estimates were inaccurate, nor did he inquire as to the evidentiary basis f or those job numbers. The AL J inquired whether the VE’s testimony was consistent with the DOT; the VE answered that it was.

I n addition to the testimony addu ce d a t the hearing

, the AL J considered the administrative rec ord, including the medical records and opinions of severa l p hy sicians. W ith respect to Shaibi’s mental and social i m p a irments, the AL J focused primarily o n the opinions of two phy s i c ians, Dr. Rog er I z z i and Dr. L aura L ochner.

Dr. I zz i ex amined Shaibi and performed a consu l tative
psy chiatric e valuation o n J uly 23, 2011, after Shaibi h a d filed for disability benefits. Dr. I z z i diag nosed Shaibi with depressive disorde r a

nd post-traumatic stress disorder. He
g ave Shaibi a score of 6 8 on the Global Assessment o f F unctioning (“GAF ”) test. According to the Diag nostic a nd Statistical Manual of Mental Disorders I V
, a GAF score of 68 reflects that the patient has “[ s] ome mild sy mp t o m s

. . . o r

some difficulty in social, occupational or school functioning

. . . but [ is] g enerally f u n ctioning pretty well, has some meaning ful i n t erpersonal r elationships.” Dr. I z z i noted thatS H A I B I V

. B E R R Y H I L L 6

Shaibi c ould perform simple, repetitive tasks in the workplace, but would be “moderately limited” in terms of his ability t o ge t along with peers and supervisors because of a mood disorder. Nevertheless, Dr. I z z i concluded that Shaibi appeared c apable of “ r esponding to u s u a l work session situations reg arding attendance and safety issues” a nd “dealingwith chang e s in a routine work setting .”

Dr. L ochner did n ot ex amine Shaibi, but she did conduct

a M e n t a l R esidual F unctional Capacity ( “MRF C ” ) Assessment based on the medical evidence in Sha i b i ’s f ile. I n Section 1 of the MRF C, Dr. L o chner c ompleted a “Summary Con clusions” worksheet, in which she indicated that Shaibi w as “not sig nificantly limited” with respect to many mental activities, including h is ability to carry out very short and simple instructions; to work in coordination with o r prox imity to others; to ask simp l e q u estions or request assistance; to accept instructions a n d respond appro p r i a tely
to c riticism from supervisors; to g et along with c oworkers o r peers without distracting them or ex hibiting be h a v i oral

ex tremes; and to maintain socially a p propriate behavior a nd ba s i c s tandards of cleanliness. W ith respect to social interaction, Dr. L ochner concluded that Shaibi was “moderately limited ” i n terms of his ability to interact with the g eneral public, but was not so limited with respect to his interactions with coworkers. Dr. L ochner found that Shaibi’s difficulties in maintaining soc i al functioning were “mild” overall. She n o t e d that Shaibi could relate to others on a

“ s u p erficial work basis” and could “adapt to a work situation.” Dr. L ochner also opined that Shaibi could perform “semi-skilled” wo r

k a nd was not limited to “simple, repetitive tasks.”S H A I B I V

. B E R R Y H I L L 7

I n determining Shaibi’s residual f unctional capacity

, the AL J g ave “ sig nificant weig ht” to the o p inions o f Dr. I z z i a nd Dr. L ochner, and c o n c luded that Shaibi had “some mental di fficulty

, and that it is a ffected b y the pain his phy sical condition c auses.” T h e A L J concluded that th e o n l y meaning ful difference b etween the opinions of Dr. I z z i a n d Dr. L ochner concerne d wh e ther Shaibi w as c apable o f performing semi-skilled w ork. The AL J accepted the opinion of Dr. I z z i in that reg a

r d a nd found that Shaibi was limited to the performance of “simple, r o u t i n e tasks in a non-public setting

, with o ccasional interaction with coworkers.” The AL J also credited the VE’s testimony that Shaibi could perform the three representative jobs of “leaf tier,” “ampoule sealer,” and “weig ht tester,” and therefore c o n c luded that Shaibi was capable of successfully adjustin g t o o ther work th a t e x isted in sig nificant numbers in the national economy

. B ased on these finding s, the AL J hel d t h a t Shaibi was not entitled to disability

benefits.

Shaibi appealed to the Social Security Appeals C ouncil, which affirmed the AL J ’s decision. He subsequently appealed to the United States D istrict Court for the Eastern District of California, alleg ing two errors by the ag e ncy

.

F irst, Shaibi arg ued that the AL J ’s residual functional capacity determination, with respect to Shaibi’s a bility to interact w ith c oworkers, was not supported by substantial evidence. Second, Shaibi alleg e d for the first time that the AL J e rred in crediting the VE’s testi m o n y reg arding the number o f ex isting jobs in the n ational economy for the three representative occupations the VE c ited at the h e a r i ng , because the VE’s job estimates were a lleg edly contradicted by the County B usiness Pa t t e r ns ( “CB P”) published by the U.S. Census B u r e a u , and by the O ccupational OutlookS H A I B I V

. B E R R Y H I L L 8

Handbook (“OOH”) published b y the B ureau of L abor Statistics, as well as by c o mmon sense. 2 Shaibi also proposed that the AL J erre d in accepting the VE’s testimony with
reg ard to Shaibi’s fitness to work as a “weig ht tester, paper” bec au s e the required reasoning level listed in the DOT

ex c e eded Shaibi’s residual functional capacity

.

The district court affirmed the denial of benefits. Shaibi timely appealed.

II. Standard of Review

This c o u r t reviews de novo a district court’s judg ment

u p h olding the denial o f Social Security benefits. Berry v. Astrue
, 622 F .3d 1228, 1231 (9th Cir. 2010). This c ourt will

reverse “only if the AL J ’s dec ision was not supported b y substantial evidence in the record as a whole or i f the AL J applied the wrong leg a l standard.” Molina v

. A s t r ue , 674 F .3d 1104, 1110 (9th Cir. 2012). “Substantial evidence” is defined as “ such relevant evidence a s a reasonable mind mig ht a ccept as adequate to support a conclusion.” Id

. at 1121 (internal q

uotation omitted). “The findings o f the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be c onclusiv e

. ” 42 U .S.C. § 405(g ).

2 Sh aib i o b serv es, f

o r ex am p le, th at co m

m o n sen se su g g ests th at o n ly

a h an d f u l o f “ leaf tier” j o b s , a t m o st, ex ist in C alif o rn ia, as acco rd in g to th e DOT , th e “ leaf

tier” p o sitio n

ex ists o n l y w ith in th e to b acco in d u s try , an d th at in du stry h as a sm all f o o tp rin t in Calif

o rn i a. S ee DICOT 5 2 9 .6 87

- 1 3 8 (G.P .O.), 1 9 91 W L 6 7 47 69 (leaf tier “ [t]ies to b acco leav es in h an d s (b u n d les) to f

acilitate p ro cessin g : S elects l o o se leav es f o r h a n d a n d

arran g es l eav es w it h b u tt en d s to g eth er. W i n d s tie leaf aro u n d b u tts an d
p u lls en d o f

tie leaf in to h an d .”).S H A I B I V

. B E R R Y H I L L 9

III. Discussion

W h en considering a claim for disability benefits, the Social Security Administration is required to conduct a nowfamiliar f ive-step sequential evaluation p rocess to determine whether a claimant is disabled and elig ible for benefits. See 20 C.F .R. § 404.1520(a). F irst, the ag ency must consider the claimant’s c urrent work activity

. Second, the ag e n c y must consider the medical severity o f the claimant’s impairments. Third, the ag ency must determine whether the severity o f those impairments is suffic ient to meet, or medically equal, the c r i t e ri a of an impairment listed in three of the Social Security Act’s implementing reg ulations, published at 20 C.F .R. §§ 404.1520(d), 404.1525-26. F ourth, the ag ency determines whether the claimant ca n perform past relevant work in lig ht o f t h e claimant’s residual functional capacity

. F ifth, the ag e ncy

assesses whether the claimant c an make an adjustment to other work that ex ists in sig nificant numbers in the national economy , based on the claimant’s r esidual functional capacity

.

“The c laimant carries the in i t i al burden of proving a disability in steps one throug h four of the analy sis. However, if a c laimant establishes a n i n a bility to continue her past work, the burden shifts t o t h e Commissioner in step five to show that the claimant can perform other substantial g a inful work.” Burch v. Barnhart

, 400 F .3d 676, 679 (9th Cir. 2 005) (citation omitted). Shaibi a lleg es that, between the third a nd fourth steps o f the sequentia l evaluation process, the AL J erred in assessing his residual functional capacity by ig noring

or discounting the o p i n i ons o f Dr. I z zi and Dr. L ochner. Shaibi further alleg es that, at the fifth step of the process, the A L J improperly credited the job numbers the VE proff e r ed

. W e address these arg

uments in turn.S H A I B I V

. B E R R Y H I L L 10

A. T h e A L J ’ s R e s i d u a l F u n c t i o n a l C a p a c i t y Determ ination Was Supported By Substantial Evidence.

S h a ibi first protests that the A L J ’s residual functio n al capacity determination “omitted” or “ r ejected” the limit a t i o ns Dr. I z zi and Dr. L ochner identified. E ssentially

, the arg ument is that the AL J mistakenly evaluated the opinions of the two phy sicians by g leaning from the “qualitative” limitations the
two doctors identified – that S haibi w ould be “moderately limit[ ed] ” in his interactions with coworkers, and that he could “ relate to o t h e r s on a superficial work b asis” – a

“ q uantitative” limitation, that Shaibi was capable of “occasional” interaction with coworkers. 3

W e find no o b v i o us inconsistency between the two phy sicians’ o pinions reg arding Sh ai bi’s capability for interaction w ith colleag ues and the AL J ’s residual functional capacity determination. U ltimately

, the A L J found that Shaibi was “limited to simple routine t as k s i n a non-public setting

, with o ccasional interaction with coworkers.” The AL J evidently contemplated that S h aibi’s social limitations

were sig nificant enoug h that he w as incapable of frequent o r sustained interactions with coworkers, but not sufficiently debilitating t hat Shaibi could never interact with c olleag ues or supervisors. That conclusion is consistent with Dr. I z zi’s

3 Co n trary t o Sh aib i’ s rep resen tatio n t h at th e ALJ ig n ored th e

o p in io n s o f Dr. Izzi an d Dr. L och n er, th e A L J ’ s d ecisio n g av e “ sig n if ican t

w eig h t” to b o th o p in io n s. T h e A L J cited w ith ap p ro v al sp ecif ic l an g u ag e i n b o th o p i n io n

– Dr. Izzi’ s o p in i o n th at Sh aib i’ s m o o d d iso r d e r

“ m o d erately lim its” Sh aib i’ s ab ility to g et alo n g w ith p eers o r su p erv iso rs,

an d Dr. L o ch n er’ s o p in io n th at Sh aib i co u ld relate to o th ers “ o n a

su p erf icial w o rk b asis.”S H A I B I V

. B E R R Y H I L L 11

opinion that Shaibi’ s social limitations were “moderate,” rather than mild or marked.

W ith reg ard to Dr. L ochner’s o pinion, Shaibi arg ues that the AL J ig n ored her conclusion tha t h e was limited to “superficial contact” with coworkers. Shaibi misstates Dr. L ochner’s opinion; in fact, she wrote that Shaibi could “ relate
to others on a superficial work basis” (emphasis added). The AL J could r e asonably have concluded that, g iven Shaibi’s

a b i l ity to “relate to o thers on a superficial work basis

, ” h e could perform essential workplace functions, even if he could
not easily develop deeper emotio n a l bonds w ith his coworkers.

Such a c onclusion is all th e m o r e r easonable in lig ht o f the “ Summary Conclusions” work sheet that D r. L o chner submitted along with her w ritten comments. On that worksheet, she indicated that Shaibi was “ not s i gn ificantly limited” in terms o f h is ability to work in coordinati o n w ith

or prox imity to others; to ask simple q u e s tions or request assistance; to accept instructions a n d r espond appropriately
to criticism from supervisors; to g et along with c oworkers o r peers w i t h o ut distracting them or e x hibiting b ehavioral

ex tremes; or to maintain socially appropriate behavior a nd basic standards o f cleanliness. Viewed in the c ontex t of her specific co n cl u sions on that worksheet, Dr. L ochner’s
statement that Shaibi could “relate to others on a su p e rficial work basis” simply confirms th a t she believed Shaibi could communicate with coworkers and supervisors as necessary

.

Shaibi’s briefing also makes much of the Social Security Administration’s policy g uidance d ocuments in its P r o gr am Operations Manual Sy stem (“POMS”). Shaibi asserts that the POMS g u i d a n c e lists fourteen mental or social functionsS H A I B I V

. B E R R Y H I L L 12

e s s e n t ial for unskilled work, a nd that the AL J ig nored Dr

. I z z i’s opinion that Shaibi was moderately limited with respect to each of these critical requirements.

POMS g uidance is not binding either on the AL J or on a reviewing c o u rt. Lockwood v. Comm’r Soc. Sec. Admin.

, 616 F .3d 1068, 1073 (9th Cir. 2010). Moreover, contrary to Shaibi’s representation, Dr. I zz i did not make specific fi n d i n gs with r espect to any of the f ourteen mental abilities Shaibi cites i n his briefing

. Dr. L ochner, however, did address each o f the mental capacities that Shaibi p r o poses a re essential for unskilled work, a n d indicated that Shaibi was not sig nificantly

limited with respect to any of them.

At bottom, Shaibi arg ues that the AL J could have c ome to

a different conclusion in weig hing the opinions o f D r

. I z zi and Dr. L ochner, had the AL J interpreted the words “moderate” and “substantial” differe n t ly

. B ut we are to affirm the A L J ’s f

inding s of fact if th e y a r e supported b y substantial evidence and if the AL J ’s d e c i s i o n was free o f leg al error. 42 U.S.C. § 405(g ); see a lso Gutierrez v. Colvin

, 844 F .3d 804, 8 07 ( 9th Cir. 2016). “W here evidence is susceptible to more than one r ational interpretation, it is the AL J ’s c onclusion that must be uphe l d .” Burch

, 400 F .3d at 679. As w e cannot say t h a t the AL J ’s interpretation of the available evidence was not ratio n a l

, the AL J ’s conclusions were supported by substantial evidence.

B. Shaibi W a i v ed His Challenge To The VE’s Job Num bers.

W e turn n ex t to whether the A L J improperly relied on the VE’s job numbers when he found that Shaibi could performS H A I B I V

. B E R R Y H I L L 13

work that ex isted in sig nificant numbers i n the n ational
economy

.

At step five of the sequential evaluation process, an AL J
must determine whether a di s ability claimant who cannot perform past relevant work is n e v ertheless c a p a ble o f performing other wo r k that ex ists in sig nificant numbers in the national economy

. 2 0 C.F .R. § 404.1520(a). H e r e , the AL J presented to the VE the case of a hy pothetical claimant with limitations matching Sha i b i ’s. The VE responded that such an applicant could perform three relevant j obs: “leaf tier,” “unskilled a mpoule sealer” and “unskilled weig h ttester, paper.” The V E also testif i e d that 5,236 “leaf tier” jobs ex isted in California and 48,438 ex isted nationwide, a nd that the “ampoule sealer” occupation represented 3,087 jobs in C a l i fornia a

nd 22,259 n ationwide. 4 Id

. The VE did not testify as to the evidentiary bas i s for his estimates. Nor did Shaibi or his attorney cross-ex amine the VE a s to the
accuracy o f those estimates, or challeng e that accuracy before the Appeals Council.

On a ppeal in federal d istrict court, S h a i b i arg u ed for the first time that the VE’s jo b estimates “deviated from listed

sources of administrat i v e notice.” Shaibi cites the CB P a nd the OOH, both of which are listed, along wit h t h e DOT, a s

sources of which the Social Security Administration will take administrative notic e

. 2 0 C.F .R. §§ 404.1566(d). He
proposes that the AL J should h ave taken administrati v e n o tice of the CB P and OOH sua sponte ; compared the V E ’ s job

4 Sh aib i also ch allen g es th e A L J ’ s f in d in g th at h e co u ld p erf

o rm th e

w o rk o f a “ w eig h t- tester, p ap er.” A s d iscu ssed belo w , alth ou g h Sh aib i’ s arg u m en t is m erito r i o u s i n th i s resp ect, w e co n clu d e th at an y su ch erro r

w as h arm less.S H A I B I V

. B E R R Y H I L L 14

numbers ag ainst the economic data in the CB P and the OOH; concluded that the VE’s job numbers c ould not h ave been accurate; and consequently rejected the VE’s numbers a s not supported by substantial e vidence. Shaibi provide s no

ex p lanation, however, for his f a ilure to r aise the issue during administrative proceeding s.

Questions reg arding the reliability of a v o c a t i o n al e x pert’s job numbers, or the evidentiary b asis for those numbers, a re familiar a nd recurring in our circuit and in our sister circuits. See, e.g. , Brown v. Colvin

, 845 F .3d 247, 254 (7th Cir. 2 016);

see also W

right v. Berryhill

, N o. 1 5-55282, 2017 W L 2645298, at * 1 (9th Cir. J une 20, 2017); Anders v. Berryhill

, No. 15-4181, 2017 W L 2179109, at * 5 (10th Cir. Apr. 18, 2017); Lemauga v. Ber r y hill

, No. 15-56611, 2017 W L 1208664, at *1 (9th Cir. Apr. 3
, 2 0 17); W elsh v. Comm’r Soc. Sec.
, 662 F

. App’x 105, 109 (3d Cir. 2 0 1 6 ) ; Guiton v

. Colvin

, 546 F

. App’x 1 37, 141–43 (4th Cir. 2013). To this point, however, we h a v e issued no precedential o p i nion concerning when a Social Security claim a n t must, absent a showing o f g ood cause, c halleng e the e v i d entiary b asis of a vocational ex pert’s job numbers to preser v e the issue for litig ation in the district court. W e n ow hold that when a claimant fails ent i r e l y to challeng e a v ocational ex pert’s job numbers during administra t ive proceeding s before the
ag ency , the c laimant w aives such a challeng e on appeal, at l east when that claimant is represented by counse l

. 5 Sp e c i fically

, our holding e ncompasses challeng es based o n an alleg ed c onflict with alterna t i ve job numbers g leaned from the CB P or the OOH.

5 Sh aib i h as n o t sh o w

n g o o d cau s e, o r su g g ested an y reaso n at all, f or h is f ailu re to ch allen g e th e j o b n u m b ers du rin g ad m in istra t i v e p r o ceed i n g s.S H A I B I V

. B E R R Y H I L L 15

Several previous deci sions compel our holding today

, particularly M

eanel v. Apfel

, 172 F .3d 1111 (9th Cir. 1999),

as amended ( J une 22, 1999). Meanel held that “at least when claimants are represent e d b y counsel, they must r aise all issues and evidence at their a d m inistrative hearing s in order
to p reserve them on appeal.” Id

. at 1115. W e so held in lig ht of the f undament a l p r i nciple that a n ag e ncy , its ex perts, a

nd its administrative law judg es are better p o s itioned to weig h conflicting evidence than a reviewing court. “T h e A L J
, rather than this Court, was in the optimal position to resolve the conflict betw een Meanel’s n ew evidence and the statistical evidence provided by the VE.” Id . That principle applies here with force.

Shaibi contends that Meanel was overruled by the Supreme Court’s subsequent hol d i n g that “[ c] laimants w ho

ex h aust a dministrative remedies need not also ex haust issues in a request for review by the Appeals Council in o rder to preserve judicial review of those issues.” Sims v. Apfel

, 530 U.S. 103, 112 (2000). Sims does no t control this c ase. S i m s concerned only whether a claimant must present a l l relevant issues to the Appeals Council to preserve them for judicial review; the Court specifically noted that “[ w] hether

a claimant must ex haust iss u e s b efore the AL J is not before us.” Id

. at 1 0 7. Here, Shaibi did not present the job-numbers issue before the AL J or

the Appeals Council. I n lig ht of the Court’s ex press limitation on its holding in Sims
, we cannot say that that holding is “clea r l y i r reconcilable” with our decision in M

eanel

, and Meanel therefore remains binding on this court with respect to p ro ce e d i n g s before an AL J

. See M iller v. Gammie
, 335 F .3d 8 89, 900 (9th Cir. 2 0 0 3 ) ( e n banc).S H A I B I V

. B E R R Y H I L L 16

Our holding is consistent w ith the plain l a n gu a ge o f the Social Security A ct. The Act stat e s that a reviewing court presented with new evidence may remand to the a g e n cy for consideration of that evidence, but o nly upon a showin g o f “g ood cause for the failure to incorporate such evidence into the record in a prior proceeding .” 42 U.S.C. § 405( g ). Not onl y has Shaibi failed to demonstrate g ood cause, he has provided n o ex planation at all for his f ailure to challeng e the VE’s job numbers duringadministrative proceeding s.

Moreover, we can find no case, reg u l a t ion, o r statute sug g esting that an A L J must sua sponte take ad m i nistrative notice of economic data in the CB P or the O OH. I t is true that an AL J i s r e q u ired to investig ate and resolve any apparent conflict between the VE’s testimony and the DOT,
reg ardless of whether a claimant raises the conflict before the
ag ency

. S

ee SSR 00-4P; see also L amear v. Berryhill

, — F .3d —, No. 15-35088, 2017 W L 3254930, a t * 4 ( 9th Cir. Aug . 1, 2017); Massachi v. Astrue , 486 F .3d 1149, 1152–54 (9th Cir. 2007). B ut Shaibi c ites to no author i t y sug g esting that the same is true for the CB P and OO H

. O u r p r ecedent holds, instead, that an AL J may rely on a vocational e x pert’s testimony concerning the number of relevant jobs in the national economy , and need not inq u i r e s u a sponte into the foundation for the ex pert’s opini o n

. Bayliss v. Barnhart

, 427 F. 3 d 1211, 1218 (9th Cir. 2005); Johnson v. Shalala

, 60 F .3d 1428, 1435–36 (9th Cir. 1995).

W e recog niz e that a c laimant w i l l rarely

, if ever, b e in a position to anticipate the particular o ccupations a V E mig ht list and the corresponding job numbers to which a VE mig ht testify at a

hearing

. W e do not sug g est that a claimant must,

w i t h i n minutes of a V E’s initial testimony

, cross-ex amine a VE with specific alternative job calculations based on theS H A I B I V

. B E R R Y H I L L 17

CB P, OOH, or other published sources. I t is enoug h to raise the job-numbers issue in a g e n eral sense before the A L J

. A claimant may do so by inquiring a s t o the evidentiary basis for a VE’s estimated job numbers, or inquiring as to whether those numbers are consistent with the CB P, OOH, or ot h er

sources listed in 20 C.F .R. §§ 404.1566(d). I f that is done, an AL J
, on request, ordinarily would permit the claimant to submit supplemen t al briefing or interrog atories contrasting the VE’s specific j o b estimates with estimates of the claimant’s o w n

. S

e e Brault v. Soc. Sec. Admin., Comm’r
, 683 F .3d 443, 451 (2d Cir. 2012). I f the AL J d eclines to do
so, a claimant may r a i s e n ew evidence casting d oubt on a VE’s job estimates before the Appeals Council, provided that evidence is both relevant and “ relates to th e p eriod on o r before the AL J ’s decision.” See B r e w e s v

. Comm’r of Soc. Sec. Admin. , 682 F .3d 1157, 1162 (9th Cir. 2012).

Here, however, althoug h the A L J was in the best position
to evaluate and resolve any conflicting evidence concerning the number o f jobs in relevant occupat i o n s, Shaibi did not

even obliquely sug g e st that the VE’s job estimates mig ht be unreliable at a

ny point d

uring a dmin i s t rative proceeding s. His claim is therefore waived. 6

6 Sh aib i also p ro p o ses th at th e A L J erred i n co n clu d in g th at Sh aib i

co u ld p erf

o rm th e w o rk o f an “ u n sk i l led w eig h t tester

– p ap er.” Sh aib i

co rrectly o b serv es th at alth o u g h

th e DOT req u ires a reaso n in g lev el o f 3 f o r su ch a p o sitio n , th e A L J f ou n d th at Sh aib i w as lim ited to p erf o rm in g

“ s im ple, rep etitiv e task s.” W e h av e h eld th at “ th ere is an ap p aren t co n f lict b etw een th e resid u al f

u n ctio n al cap acity to p erf o rm sim p l e , r ep etitiv e task s, an d t

h e d e m a n d s o f L ev el 3 Reaso n in g ,” an d th at an A L J m u st

reco g n ize an d reso lv e su ch a co n f l ict d u rin g ad m in istrativ e p ro ceed i n g s. Z a v a lin v. Co lvin

, 7 7 8 F.3 d 84 2
, 8 4 7 (9 th C ir. 20 1 5 ). A n y erro r in t h i s reg ard w as, h o w ev er, u ltim ately h arm less, as th e A L J also f o u n d th at th e

“ l eaf t ier” occu

patio n rep resen ted 5 ,2 36 j o b s in Calif o rn ia an d 4 8 ,4 3 8S H A I B I V

. B E R R Y H I L L 18

CONCLUSION

F or the foreg oing r easons, w e AF F IRM the district court’s denial of Shaibi’s appeal.

n atio n w id e, an d th at th e “ am p o u le s ealer” o ccu

p atio n rep resen ted 3 ,0 8 7 j o b s in Calif o rn i a an d 2 2 ,2 5 9 n atio n w id e. W e h av e h eld th at 2 ,5 0 0 j o b s in Calif o rn ia, o r 2 5 ,0 0 0 n atio n w id e, co n stitu te a sig n if

ican t am o u n t of

w o rk in th e reg io n al an d n atio n al eco n o m ies. G u tierrez v. Co mm’r o f S o c. S ec. , 7 4 0 F.3 d 5 1 9 , 5 2 7

– 2 9 (9 th Cir. 2 0 1 4 ).