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Shaibi v. Berryhill

United States Court of Appeals, Ninth Circuit

August 22, 2017

Maged Saleh Mohammed Shaibi, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued and Submitted May 18, 2017 San Francisco, California

         Appeal 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, for Plaintiff-Appellant.

          Daniel 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. [*]

         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.

          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 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]

         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 ...


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