Maged Shaibi v. Nancy Berryhill
2017 U.S. App. LEXIS 15959
9th Cir.2017Background
- Shaibi applied for Social Security disability benefits alleging physical and mental impairments (degenerative disc disease, depression, anxiety, diabetes, obesity, osteoarthritis) and limitations on standing/walking, carrying, and interaction.
- At hearing an ALJ posed a hypothetical RFC to a vocational expert (VE): lift/carry 10 lbs, stand/walk up to 4 hours (cane for long distances), unlimited sitting, and perform simple routine tasks in a non-public setting with occasional coworker interaction.
- VE identified three representative sedentary, unskilled jobs (leaf tier; ampoule sealer; weight tester–paper) and testified to specific California and national job counts; counsel did not challenge the VE’s job estimates or ask their evidentiary basis at the hearing.
- ALJ gave significant weight to medical opinions of Dr. Izzi (exam) and Dr. Lochner (file review), adopted limitations to simple routine tasks with occasional coworker interaction, credited the VE’s job testimony, and denied benefits. Appeals Council and district court affirmed.
- On appeal to the Ninth Circuit, Shaibi challenged (1) the ALJ’s RFC evaluation regarding coworker interaction and (2) for the first time in district court, the accuracy of the VE’s job numbers (arguing conflict with Census County Business Patterns and the Occupational Outlook Handbook).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ’s RFC improperly omitted or mischaracterized physicians’ social-interaction limitations | Shaibi: ALJ ignored/discounted Drs. Izzi and Lochner and converted qualitative "moderate" limits into an unjustified "occasional" limitation | Commissioner: ALJ gave significant weight to both opinions; RFC is consistent with doctors’ moderate limitations and supporting worksheets | Held: ALJ’s RFC is supported by substantial evidence; reasonable interpretation of medical opinions |
| Whether claimant may raise for the first time in district court a challenge to VE job-number estimates when counsel did not object at hearing | Shaibi: VE numbers contradicted CBP/OOH and common sense; ALJ should have sua sponte checked those sources | Commissioner: Claimant waived the argument by failing to raise it at the administrative level; ALJ not required to take administrative notice of CBP/OOH sua sponte | Held: Challenge waived—claimant (represented by counsel) must at least raise accuracy/evidentiary basis of VE job numbers during administrative proceedings to preserve issue on judicial review |
| Whether ALJ had duty to compare VE job numbers to CBP/OOH sua sponte | Shaibi: ALJ should have taken administrative notice and compared data | Commissioner: No such sua sponte duty; ALJ need only resolve DOT conflicts per SSR 00-4P | Held: No sua sponte duty to consult CBP/OOH; reliance on VE permissible absent an objection |
| Whether alleged DOT conflict (reasoning level) for "weight tester—paper" required remand | Shaibi: DOT reasoning level 3 conflicts with claimant’s limitation to simple, repetitive tasks | Commissioner: Other VE jobs had sufficient numbers to be significant | Held: There is an apparent conflict under Zavalin, but any error was harmless because other VE jobs met the significant-numbers threshold |
Key Cases Cited
- Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999) (claimants represented by counsel must raise issues and evidence at administrative hearing to preserve them on appeal)
- Sims v. Apfel, 530 U.S. 103 (2000) (exhaustion requirement for Appeals Council review does not resolve whether issues must be raised before ALJ)
- Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005) (ALJ may rely on VE testimony about job numbers absent objection)
- Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015) (apparent conflict between RFC limiting to simple, repetitive tasks and DOT reasoning level 3 must be resolved at administrative level)
- Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519 (9th Cir. 2014) (articulates numerical thresholds for what qualifies as a "significant number" of jobs)
- Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007) (ALJ must investigate and resolve apparent conflicts between VE testimony and DOT)
- Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443 (2d Cir. 2012) (ALJ ordinarily should permit submission of supplemental briefing when a challenge to VE numbers is raised)