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In Shapiro, however, counsel for the claimant did not seed the ground by questioning the VE about job availability data during the hearing as Plaintiff's counsel here did. 833 Fed.Appx. at 696.
Summary of this case from Christopher F. v. Comm'r, Soc. Sec. Admin.Opinion
No. 20-15505
01-19-2021
MAGDALENA SHAPIRO, Plaintiff-Appellant, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 2:18-cv-01411-DJA MEMORANDUM Appeal from the United States District Court for the District of Nevada
Daniel J. Albregts, Magistrate Judge, Presiding Submitted January 13, 2021 San Francisco, California Before: BEA and M. SMITH, Circuit Judges, and RESTANI, Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.
Plaintiff-Appellant Magdalena Shapiro (Shapiro), a 49-year-old woman suffering from various medical impairments, appeals an order of the district court affirming the decision of the Commissioner of Social Security (Commissioner) denying her disability insurance benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's decision.
"[W]e review de novo the district court's order upholding a decision of the Commissioner denying benefits to an applicant." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (citation omitted). The Commissioner's findings of fact "if supported by substantial evidence, shall be conclusive[.]" 42 U.S.C. § 405(g). In Shapiro's hearing before an Administrative Law Judge (ALJ), a vocational expert (VE) testified that while Shapiro could not perform her past work, she could perform other jobs that exist in significant numbers in the national economy. Based on the VE's estimates, the ALJ found at Step Five that Shapiro was not disabled.
"[A]t least when 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). A claimant should challenge a VE's estimates through cross-examination by "rais[ing] the job-numbers issue in a general sense before the ALJ." Shaibi v. Berryhill, 883 F.3d 1102, 1110 (9th Cir. 2017). After the hearing, an ALJ would ordinarily "permit the claimant to submit supplemental briefing or interrogatories" with their own job numbers. Id. If the ALJ declines to accept supplemental evidence, "a claimant may raise new evidence casting doubt on a VE's job estimates before the Appeals Council, provided that evidence is both relevant and 'relates to the period on or before the ALJ's decision.'" Id. (citing Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012)).
The court has applied this exhaustion standard to non-attorney representatives as well. See Keifer v. Saul, 789 F. App'x 581, 582 (9th Cir. 2020) (unpublished) (holding that claimant "represented by a lay representative...forfeited any challenge to the VE's job numbers because she failed to raise the issue during the administrative hearing.").
Shapiro and her representative declined to cross-examine the VE during the hearing, and Shapiro does not argue that she requested an opportunity to submit interrogatories or supplemental briefing for the ALJ to consider. Instead, Shapiro submitted new evidence on job numbers contesting the VE's estimates to the Appeals Council. Because she was represented and did not challenge the VE's job numbers during the hearing before the ALJ, Shapiro "forfeits such a challenge on appeal[.]" Shaibi, 883 F.3d at 1109; Meanel, 172 F.3d at 1115. Under Shaibi, the submission of new evidence to the Appeals Council does not resolve the forfeiture issue, because the issue was not first raised before the ALJ. See 883 F.3d at 1109-10 (citing Brewes, 682 F.3d at 1162).
The Commissioner was also under no obligation to sua sponte resolve a conflict between job numbers provided by Shapiro and the VE's testimony because the job numbers came from sources other than the Dictionary of Occupational Titles. See Shaibi, 883 F.3d at 1109 n.6; Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020).
Accordingly, the district court judgment is AFFIRMED.