and Submitted May 18, 2017 San Francisco, California
from the United States District Court for the Eastern
District of California D.C. No. 1:14-cv-00948-SAB Stanley A.
Boone, Magistrate Judge, Presiding
Lawrence D. Rohlfing (argued), Santa Fe Springs, California,
Paul Talbert (argued) and Esther Kim, Special Assistant
United States Attorneys; Deborah Lee Stachel, Acting Regional
Chief Counsel, Region IX; Phillip A. Talbert, Acting United
States Attorney; Social Security Administration, San
Francisco, California; for Defendant-Appellee.
Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges,
and Jon P. McCalla, District Judge. [*]
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.
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.
BERZON, Circuit Judge
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.
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.
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.
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."
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.
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.
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