NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTA SHERRY KEIFER, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 18-16019 

D.C. No. 3:17-cv-00332-EDL 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Elizabeth D. Laporte, Magistrate Judge, Presiding

Argued and Submitted December 2, 2019

San Francisco, California

Before: LUCERO,** CALLAHAN, and BADE, Circuit Judges.

Roberta Keifer appeals the district court’s affirmance of the Commissioner

of Social Security’s denial of Disability Insurance Benefits for the period between 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Carlos F. Lucero, United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

FILED

JAN 6 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-16019 

April 6, 2009, and November 1, 2014. Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm.

We review de novo a district court’s affirmance of the decision of an 

Administrative Law Judge (“ALJ”). Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 

2007). A denial of benefits may be set aside only if “the ALJ’s findings are based 

on legal error or are not supported by substantial evidence in the record as a 

whole.” Id. (quoting Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999)). 

“Substantial evidence is such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” Id.

Keifer challenges the ALJ’s failure to reconcile inconsistencies between the 

Department of Labor’s Dictionary of Occupational Titles (“DOT”) and vocational 

expert (“VE”) testimony. The ALJ found Keifer’s residual functional capacity 

limited her to jobs involving one- to two-step instructions, meaning she was 

limited to DOT Reasoning Level 1 jobs. See Dictionary of Occupational Titles 

app. C (4th ed. 1991), 1991 WL 688702 (defining Reasoning Level 1 occupations 

as those requiring employees to “[a]pply commonsense understanding to carry out 

simple one- or two-step instructions”). The VE testified that Keifer could have 

worked as an eye-dropper assembler (Reasoning Level 2), a stuffer (Reasoning 

Level 2), or a final assembler (Reasoning Level 1). Relying on the VE’s

testimony, the ALJ found Keifer could have worked in any of these three 
3 18-16019 

occupations, even though the occupations of eye-dropper assembler and stuffer 

require Level 2 Reasoning.

Although the ALJ did not resolve this conflict between the VE’s testimony 

and the DOT, we conclude any error was harmless. See Zavalin v. Colvin, 778 

F.3d 842, 846, 848 (9th Cir. 2015) (conducting harmless error review of ALJ’s 

failure to reconcile apparent conflict). The VE’s testimony was consistent with the 

DOT with respect to the occupation of final assembler, and the ALJ found there 

were a significant number of final assembler jobs—108,750 in the national 

economy—for which Keifer was qualified. See Gutierrez v. Comm’r of Soc. Sec., 

740 F.3d 519, 529 (9th Cir. 2014) (holding 25,000 nationwide jobs significant).

Keifer also challenges the VE’s testimony as to job numbers. She did not

raise this argument during the administrative hearing. “[W]hen a claimant fails 

entirely to challenge a [VE]’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.” Shaibi v. Berryhill, 883 F.3d 1102, 1109 

(9th Cir. 2017). Keifer was represented by a lay representative eligible for direct 

payment of fees under the Social Security Act. We conclude she forfeited any 

challenge to the VE’s job numbers because she failed to raise the issue during the 

administrative hearing.

Even if Keifer’s argument were not forfeited, we would affirm. Keifer 
4 18-16019 

contends that the ALJ unreasonably relied on the VE’s job-numbers testimony 

without supporting data and that the testimony conflicts with the Occupational 

Outlook Handbook published by the Bureau of Labor Statistics. But “an ALJ may 

rely on a [VE]’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.” Id. at 1110; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1155-56

(2019) (“[A] vocational expert’s testimony may count as substantial evidence even 

when unaccompanied by supporting data.”). Because the ALJ’s findings were 

consistent with the VE’s testimony, the ALJ’s decision was supported by 

substantial evidence in the record.

AFFIRMED.