Summary
holding appellant waived the issue of conflict between a VE's testimony and certain occupational sources by failing to raise it before the ALJ or Appeals Council
Summary of this case from Miller v. KijakaziOpinion
No. 18-55631
01-13-2021
FERNANDO M. VIZCARRA, Plaintiff-Appellant, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 5:16-cv-01736-DFM MEMORANDUM Appeal from the United States District Court for the Central District of California
Douglas F. McCormick, Magistrate Judge, Presiding Before: GOODWIN, CANBY, and LEAVY, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Fernando M. Vizcarra appeals the district court's affirmance of the Commissioner of Social Security's denial of his application for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
Vizcarra's sole argument on appeal is that the administrative law judge ("ALJ") erred by failing to resolve a purported conflict between the vocational expert's testimony and the Bureau of Labor Statistics' Occupational Outlook Handbook ("OOH") and an associated publication called the Occupational Information Network ("O*Net"). Vizcarra failed to raise this argument before the ALJ or the Appeals Council. Generally, where "claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal." Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). By failing to raise the claim before either the ALJ or the Appeals Council, Vizcarra has forfeited this argument. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017).
Vizcarra contends that the ALJ had an obligation to consider the OOH sua sponte because the OOH is subject to administrative notice under 20 C.F.R. § 404.1566(d). This court rejected that argument in Shaibi, 883 F.3d at 1109-10 & n.6. The fact that Shaibi rejected the argument in the context of considering the number of jobs in the economy rather than the ability to perform particular jobs does not distinguish its reasoning or holding, which we apply here.
Forfeiture of an issue will be excused only when necessary to avoid a manifest injustice. Meanel, 172 F.3d at 1115. Vizcarra has not demonstrated a manifest injustice will result, and has forfeited his challenge to the ALJ's Step Five determination.
AFFIRMED.