Shaibi v. Berryhill
883 F.3d 1102
| 9th Cir. | 2017Background
- Shaibi, suffering physical and mental impairments, applied for Title II disability benefits; ALJ held a hearing with claimant and a vocational expert (VE) and denied benefits.
- VE testified a hypothetically limited claimant (lift/carry 10 lbs, stand/walk 4 hrs with cane, sit unlimited, simple routine tasks, non-public, occasional coworker interaction) could perform three sedentary, unskilled jobs: leaf tier; ampoule sealer; weight tester (paper), giving specific California and national job counts.
- Shaibi’s counsel did not challenge the VE’s job-number estimates at the hearing or before the Appeals Council and stipulated to the VE’s qualifications.
- The ALJ credited medical opinions from Dr. Izzi (examining) and Dr. Lochner (non-examining) and limited Shaibi to simple, routine tasks with occasional coworker interaction; ALJ found sufficient jobs existed and denied benefits.
- On appeal to district court and then Ninth Circuit, Shaibi contested (1) the RFC interpretation of social interaction limits, and (2) for the first time, the accuracy of the VE’s job numbers vis-à-vis CBP/OOH and common-sense objections (and raised a DOT reasoning-level conflict for one job).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ’s RFC omitted or improperly weighed mental/social limits | Shaibi: ALJ rejected/quantified doctors’ qualitative limits and improperly limited coworker interaction to "occasional" | ALJ: Gave significant weight to both physicians; RFC matched their moderate/"superficial" findings | RFC determination supported by substantial evidence; ALJ’s interpretation was rational and affirmed |
| Whether claimant may challenge VE job-number estimates on judicial review when not raised administratively | Shaibi: VE numbers conflicted with CBP/OOH and common sense; should be reviewable in federal court | SSA: Issue was never raised before ALJ/Appeals Council; claimant forfeited the challenge absent good cause | Forfeited: claimant (represented by counsel) must raise accuracy of VE numbers during administrative proceedings; failure to do so forfeits review absent good cause |
| Whether ALJ must sua sponte reconcile VE numbers with CBP/OOH | Shaibi: ALJ should have compared VE numbers to CBP/OOH sua sponte | ALJ: No authority requires sua sponte reconciliation with CBP/OOH; SSR 00‑4P applies to DOT conflicts only | ALJ not required sua sponte to reconcile VE numbers with CBP/OOH; reliance on VE permissible absent timely challenge |
| Whether DOT reasoning-level conflict (Level 3) with RFC (simple, repetitive tasks) invalidated reliance on that job | Shaibi: Weight‑tester requires Level 3 reasoning exceeding RFC | SSA: Other listed jobs remained available in significant numbers | Error as to that job exists but was harmless because other jobs alone 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 before Appeals Council not required to preserve judicial review; does not address exhaustion before ALJ)
- Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005) (ALJ may rely on VE testimony about job numbers and need not inquire sua sponte into expert’s foundation)
- Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015) (apparent conflict between RFC limited to simple, repetitive tasks and DOT reasoning level 3 must be addressed)
- Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519 (9th Cir. 2014) (numerical thresholds for "significant numbers" in regional/national economy)
- Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443 (2d Cir. 2012) (ALJ should permit submission of supplemental briefing or interrogatories when VE numbers are challenged)
- Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157 (9th Cir. 2012) (new evidence before Appeals Council must relate to period on or before ALJ decision)
- Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007) (ALJ must resolve apparent conflicts between VE testimony and DOT per SSR 00‑4P)
- Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068 (9th Cir. 2010) (POMS not binding on courts or ALJs)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (doctrine on controlling precedent and when later authority is irreconcilable)