FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAGED SALEH MOHAMMED SHAIBI,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL, Acting

Commissioner of Social Security,

Defendant-Appellee.

No. 15-16849

D.C. No.

1:14-cv-00948-

SAB

OPINION

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

Before: Marsha S. Berzon and Mary H. Murguia, Circuit

Judges, and Jon P. McCalla, District Judge.*

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**

Disability Insurance Benefits

The panel 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

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 waived.

COUNSEL

Lawrence D. Rohlfing (argued), Santa Fe Springs, California,

for Plaintiff-Appellant.

Daniel Paul Talbert (argued) and Esther Kim, Special

Assistant United States Attorneys; Deborah Lee Stachel,

** 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

Acting Regional Chief Counsel, Region IX; Phillip A.

Talbert, Acting United States Attorney; Social Security

Administration, San Francisco, California; for DefendantAppellee.

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

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
4 SHAIBI V. BERRYHILL

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

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

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).”
SHAIBI V. BERRYHILL 5

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

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
6 SHAIBI V. BERRYHILL

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

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.”
SHAIBI V. BERRYHILL 7

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

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
8 SHAIBI V. BERRYHILL

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.

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).

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

III. Discussion

When considering a claim for disability benefits, the

Social Security Administration is required to conduct a nowfamiliar 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

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.
10 SHAIBI V. BERRYHILL

A. The ALJ’s Residual Functional Capacity

Determination Was Supported By Substantial

Evidence.

Shaibi first protests that the ALJ’s residual functional

capacitydetermination “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

“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

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 opinion – 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.”
SHAIBI V. BERRYHILL 11

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.

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
12 SHAIBI V. BERRYHILL

essential for unskilled work, and that the ALJ ignored Dr.

Izzi’s opinion that Shaibi was moderatelylimited 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.

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 Waived 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
SHAIBI V. BERRYHILL 13

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 weighttester, 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

in California and 22,259 nationwide.4Id. 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

accuracyof those estimates, or challenge that accuracybefore

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 ALJshould have taken administrative notice

of the CBP and OOH sua sponte; compared the VE’s job

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.
14 SHAIBI V. BERRYHILL

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 reliabilityof 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

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 waives 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.

5 Shaibi has not shown good cause, or suggested any reason at all, for

his failure to challenge the job numbers during administrative proceedings.
SHAIBI V. BERRYHILL 15

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.

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).
16 SHAIBI V. BERRYHILL

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,

regardless of whether a claimant raises the conflict before the

agency. See SSR 00-4P; see also Lamear v. Berryhill, —

F.3d —, No. 15-35088, 2017 WL 3254930, at *4 (9th Cir.

Aug. 1, 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. 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
SHAIBI V. BERRYHILL 17

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

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 waived.6

6 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
18 SHAIBI V. BERRYHILL

CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s denial of Shaibi’s appeal.

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).