Brigita Miller v. Carolyn W. Colvin

Filing 24

MEMORANDUM AND OPINION by Magistrate Judge Karen L. Stevenson re: IT IS ORDERED that the decision of the Commissioner is AFFIRMED.LET JUDGMENT BE ENTERED ACCORDINGLY. (rh)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) NO. EDCV 16-1822-KS ) ) ) MEMORANDUM OPINION AND ORDER ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) Defendant. ) ________________________________ ) BRIGITA MILLER, Plaintiff, v. 17 18 INTRODUCTION 19 20 Plaintiff Brigita Miller filed a Complaint on August 24, 2016, seeking review of the 21 denial by the Commissioner of the Social Security Administration (“SSA”) of her 22 applications for Title II disability insurance benefits (“DIB”) and Title XVI supplemental 23 security income benefits (“SSI”). (Dkt. No. 1.) On February 16, 2017, Defendant filed an 24 Answer to the Complaint. (Dkt. No. 17.) Pursuant to 28 U.S.C. § 636(c), all parties have 25 consented to proceed before the undersigned United States Magistrate Judge for all further 26 proceedings, including entry of Judgment. (Dkt. Nos. 11, 12, 13.) On June 13, 2017, the 27 parties filed a “Joint Stipulation” (“Joint Stip.”) setting forth the disputed issue in this case. 28 (Dkt. No. 22.) The matter is now under submission and ready for decision. 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On May 11, 2011, Plaintiff filed applications for Title II DIB and Title XVI SSI 4 benefits, alleging in both applications a disability onset date of April 8, 2010. (AR 30, 155.) 5 Plaintiff was born on February 26, 1971, and was 41 years old at the time of the 6 administrative proceedings, thus classified as a younger individual for disability purposes. 7 (AR 58, 68.) 8 9 A first hearing was held before an Administrative Law Judge (“ALJ”) on October 25, 10 2012. (AR 96-124.) Plaintiff, represented by counsel, testified that she had a car accident in 11 April 2011 where she suffered a broken right leg, and she has been intermittently using a 12 cane since then. (See AR 100-01; see also AR 58-59.) On December 19, 2012, the ALJ 13 issued a first decision denying Plaintiff’s DIB and SSI applications. (See AR 155-65.) On 14 July 7, 2014, the Appeals Council vacated the ALJ’s denial and remanded the case for 15 further proceedings. (AR 170-74.) 16 17 A second hearing was held before a different ALJ on February 10, 2015. (AR 49-95; 18 see also AR 30.) Plaintiff, again represented by an attorney, testified, along with a 19 Vocational Expert (“VE”), Sandra Fioretti, a medical expert, Arnold Ostrov, and a 20 psychological expert (“PE”), David Glass Meyer. (AR 49.) The ALJ examined the PE, who 21 opined about Plaintiff’s depression and anxiety. (AR 55-56.) The medical expert appeared 22 by phone and noted that Plaintiff used a cane, apparently on the recommendation of two 23 consultative examiners, but he said that he did not include the use of a cane in his assessment 24 of Plaintiff’s residual functional capacity (“RFC”). 25 26 Plaintiff confirmed at the second hearing that she has fibromyalgia, depression, and 27 anxiety, and she again testified that she broke her right leg in a car accident in April 2011. 28 (AR 69, 76-77.) She said she only takes “regular pain medication” and has never been 2 1 prescribed any pain medication, but Dr. Wilson Gomer, her primary care doctor, prescribes 2 her anti-anxiety medications. (AR 70.) Plaintiff said that she has not been able to put full 3 weight on her right leg since her car accident. (AR 76-77.) She uses a cane about three to 4 four times a week. (AR 77.) Her swelling “never goes away,” and she has to “put my feet 5 up,” but she claimed it does not help. (AR 78.) 6 7 At the second hearing, the VE opined that Plaintiff’s past relevant work (“PRW”) 8 consisted of three jobs at sedentary or light levels: (1) insurance agent, light work; (2) 9 “security supervisor” or “post commander,” light; and (3) “directory assistance,” sedentary. 10 (AR 86.) The ALJ posed a hypothetical to the VE that posited, among other things, a person 11 limited to a range of sedentary work, standing and walking for 2 hours out of 8-hour day, 12 and no prolonged walking greater than about 15 minutes with the use of a cane. (AR 86-87.) 13 The ALJ also posited sitting limited to 6 hours out of an 8-hour day “with the ability to stand 14 and stretch not to exceed 10 percent of the day” (that is, apparently, 48 minutes a day), 15 occasional use of stairs, and no forceful gripping and grasping. (AR 87.) The VE said that 16 Plaintiff could not do her PRW with those limitations. (AR 87.) However, the VE said that 17 there were three other sedentary jobs that Plaintiff could do even with those limitations: (1) 18 “addresser” (DOT 209.587-010), with 43,000 jobs available nationally; (2) “lens inserter” in 19 the “optical sunglasses industry” (DOT 713.687-026), 11,500 jobs nationally; and (3) “para 20 mutual ticket checker,” that is, a person checking betting slips and receipts at a race track, 21 (DOT 219.587-010), 71,800 jobs nationally. (AR 87-89.) 22 23 The following exchange then occurred between the ALJ and the VE: 24 25 [ALJ]: Now, if a person – if we were to add to the hypothetical a need to 26 elevate the legs at waist level, at least maybe 15 minutes every two hours, would 27 that impact these jobs? 28 3 1 2 [VE]: Now, if they are different than the break routine in most jobs, it would not, as long as it could be performed on breaks. 3 [ALJ]: And what if there was a need to elevate the legs for longer periods 4 than that? Anything longer than 15 minutes every two hours? Would that impact 5 these jobs? 6 [VE]: It would. It would eliminate them, Your Honor. 7 [ALJ]: If there were absences from pain or medical treatment greater than 8 9 three or more a month, what would that do to these jobs? [VE]: It would eliminate them, Your Honor. 10 11 (AR 88-89; bracketed material added.) 12 13 Plaintiff’s attorney also asked the VE to explain “the methodology that you used to 14 arrive at the numbers that you stated?” (AR 91.) The ALJ noted that Plaintiff’s attorney had 15 “already . . . allowed [the VE] to testify as a . . . vocational [expert].” (AR 91.) However, 16 the ALJ said “I will let him [i.e., the VE] answer that, as long as we don’t take very much 17 time.” (AR 91.) The VE then responded that “I relied upon today . . . the Occupational 18 Employment Statistics [OES] . . . [and c]ensus statistics that are proffered by United Staff 19 Publishing via downloads from the Census Department and the Department of Labor.” (AR 20 91-92.) The VE also testified that he used his “professional judgment” to effectively erode 21 job numbers as he saw fit. (AR 92-93.) The VE also said that he uses “OccuBrowse,” 22 which is put out by the same company as Job Browser Pro. (AR 93.) 23 24 SUMMARY OF ADMINISTRATIVE DECISION 25 26 On March 13, 2015, the second ALJ issued a decision again denying Plaintiff’s DIB 27 and SSI applications. (AR 30-42.) Applying the five-step evaluation process, the second 28 ALJ first determined that Plaintiff had not engaged in substantial gainful activity since April 4 1 8, 2010, her alleged onset date. (AR 32.) The ALJ next found that Plaintiff has the 2 following severe impairments: (1) obesity; (2) acute coronary syndrome; (3) hypertension; 3 (4) status post right tibia/fibula fracture; (5) post internal fixation; (6) arthritis of both the left 4 and right knees; (7) depression; and (8) anxiety. (AR 32.) The ALJ also noted that 5 Plaintiff’s Body-Mass Index (“BMI”) of 37 put her over the BMI of 30 required for 6 “obesity.” (AR 32-33 and n.1.) The ALJ found that Plaintiff did not meet or equal a listed 7 impairment in 20 CFR Part 404, Subpart P, Appendix. (AR 33.) 8 The ALJ found that Plaintiff had the residual function capacity (“RFC”) to perform a 9 10 range of sedentary work, with limitations including, among other things: standing or 11 walking for 2 hours out of an 8-hour day, and “no prolonged walking greater than 15 12 minutes with the use of a cane”; sitting for 6 hours out of an 8-hour day “with the ability to 13 stand stretch [sic] not to exceed 10 percent of the day”; and occasionally climb stairs; “and 14 elevate legs to waist level every two hours for about 15 minutes during breaks and lunch.” 15 (AR 34.) 16 17 At step four, the ALJ found that Plaintiff was unable to perform her past relevant 18 work. (AR 40.) Nevertheless, at step five the ALJ found that there was still other work that 19 Plaintiff could do, namely the three jobs identified by the VE at the second hearing: (1) 20 addressor, (2) lens inserter, and (3) para mutual ticket taker1. (AR 41.) Consequently, the 21 ALJ found that Plaintiff has not been disabled from April 8, 2010, the alleged onset date, 22 through March 13, 2015, the date of the second ALJ’s decision. (AR 41-42.) 23 \\ 24 \\ 25 \\ 26 27 28 1 The VE testified that a “para mutual ticket checker” is someone who “usually works at a gambling type of employer, such as a race track or at times gambling casinos and they are basically checking betting slips against cashier receipts” and these are “back office” positions with no public involvement. (AR 89.) 5 APPEALS COUNCIL PROCEEDINGS 1 2 3 In August 2015, Plaintiff made a request to the Appeals Council of the SSA seeking 4 review of the ALJ’s March 13, 2015 decision. (AR 7, 497.) In a letter to Plaintiff’s attorney 5 dated August 14, 2015, the Appeals Council advised Plaintiff that “[y]ou may send us more 6 evidence or a statement about the facts and the law in this case,” but the Appeals Council 7 cautioned that “[a]ny more evidence must be new and material to the issues considered in 8 the hearing decision dated March 13, 2015.” (AR 7 (italics in original).) 9 10 On September 16, 2015, Plaintiff’s counsel sent a letter and attached exhibits to the 11 Appeals Council in support of Plaintiff’s request for review of the ALJ’s decision. (AR 497- 12 515 at Ex. 25E.) Plaintiff presented a number of arguments, including an argument that 13 “[t]he jobs cited by the [VE] [are] inconsistent with Ms. Miller’s limitations [].” (AR 497- 14 99.) 15 argument about the ALJ’s accommodation that allowed for Plaintiff to “elevate legs to waist 16 level every two hours for about 15 minutes during breaks and lunch.” (AR 34, 407-515.) In that response to the Appeals Council, Plaintiff did not, however, present any 17 18 On June 24, 2016, the Appeals Council notified Plaintiff that, notwithstanding the 19 letter brief and the exhibits submitted by Plaintiff and her counsel, it had denied Plaintiff’s 20 request for review of the ALJ’s March 13, 2015 decision, and therefore the ALJ’s decision 21 was the final decision of the Commissioner. (AR 1.) 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 26 determine whether it is free from legal error and supported by substantial evidence in the 27 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 28 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 6 1 reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm'r of 2 Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the 3 evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's 4 findings if they are supported by inferences reasonably drawn from the record.” Molina v. 5 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 6 7 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 8 nonetheless must review the record as a whole, “weighing both the evidence that supports 9 and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. 10 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); 11 Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ 12 is responsible for determining credibility, resolving conflicts in medical testimony, and for 13 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 14 15 The Court will uphold the Commissioner’s decision when the evidence is susceptible 16 to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 17 2005). However, the Court may review only the reasons stated by the ALJ in his decision 18 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 19 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not 20 reverse the Commissioner's decision if it is based on harmless error, which exists if the error 21 is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error, 22 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487, 23 492 (9th Cir. 2015) (internal citations omitted). 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 7 DISCUSSION 1 2 3 I. Disputed Issue 4 5 The parties Joint Submission presents one disputed issue: “Whether the ALJ’s 6 determination that Miller’s requirement to elevate her legs every two hours for 15 minutes 7 precludes work activity.” (Joint Stip. at 5.) 8 9 II. Number of Jobs Available with 15-Minute Breaks 10 11 As noted, the second ALJ’s RFC determination indicated that Plaintiff could only 12 stand or walk for 2 hours and sit for 6 hours out of an 8-hour day, could not walk for more 13 than 15 minutes without the use of a cane, and would have to “elevate [her] legs to waist 14 level every two hours for about 15 minutes during breaks and lunch.” (AR 34.) During the 15 administrative hearing, the VE opined that this last limitation – elevating her legs to waist 16 level every two hours for about 15 minutes – would not prevent Plaintiff from performing 17 the three jobs that the VE had opined that Plaintiff would be able to perform “as long as [the 18 elevation] could be performed on breaks.” (AR 88.) 19 20 A. Parties’ Arguments 21 22 Plaintiff argues that the VE’s testimony “is premised and conditioned upon the belief 23 that 15 minute job breaks are inherent in each job,” but Plaintiff argues that the VE’s 24 assumption is incorrect. (Joint Stip. at 5-6.) Plaintiff asks the Court to take “judicial notice” 25 of relevant labor laws and regulations that contradict the ALJ’s adoption of a 15 minute 26 break that would allow Plaintiff to elevate her legs. (Id.) Plaintiff argues that “[t]he law 27 requires at most a 10 minute break only, not [] ‘at least’ a 15 minute break,” and that is only 28 required in 9 states. (Joint Stip. at 7.) Plaintiff also argues that, if Plaintiff’s break times 8 1 were occupied with the necessary 15-minute foot elevation, no time would be left to allow 2 Plaintiff “to take care of other personal needs,” and Plaintiff argues that “[t]o find otherwise 3 [would require] an accommodation on the part of the employer which is not allowed in 4 determining whether jobs exist[] in the national economy.” (Joint Stip. at 7, citing Social 5 Security Ruling (“SSR”) 00-1c and Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 6 (1999).) As discussed below, Plaintiff asks the Court to take notice of information from 7 several websites concerning federal and state law regarding break times. (See Joint Stip. at 8 6-8, 11.) In essence, Plaintiff challenges the VE’s determination that numerous jobs exist in 9 the national economy that Plaintiff can perform given her RFC and argue that if no such jobs 10 exist, Plaintiff must be found disabled and awarded benefits. 11 12 Defendant argues that, under the Ninth Circuit case of Meanel v. Apfel, 172 F.3d 1111 13 (9th Cir. 1999), Plaintiff has waived this issue because she was represented by counsel at the 14 hearings before the ALJs and in her subsequent appeal to the Appeals Council, but she never 15 raised the issue of the validity of the VE’s opinions about the number of available alternative 16 jobs in the national economy that Plaintiff could perform based on her RFC, until she filed 17 suit in this federal court. (Joint Stip. at 9-10, citing, inter alia, Meanel v. Apfel, 172 F.3d 18 1111, 1115 (9th Cir. 1999) (as amended June 22, 1999).) 19 20 B. Judicial Notice of Information on Government Websites 21 22 The Court first addresses Plaintiff’s requests for judicial notice. Under Federal Rule of 23 Evidence 201(b), a judicially noticed fact must be one not subject to reasonable dispute in 24 that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) 25 capable of accurate and ready determination by resort to sources whose accuracy cannot 26 reasonably be questioned.” Under Rule 201, the court can take judicial notice of public 27 records available from reliable Internet sources such as websites run by government 28 agencies. See Daniels-Hall v. Nat’l Education Assoc., 629 F.3d 992, 999 (9th Cir. 2010) 9 1 (taking judicial notice of information on the websites of two school districts as they were 2 government entities); see also Paralyzed Veterans of America v. McPherson, No. C 06-4670, 3 2008 WL 4183981, *5 (N.D. Cal. Sept. 89, 2008) (“information on government agency 4 websites has often been treated as properly subject to judicial notice”). The Court will 5 therefore take judicial notice of the information from the websites of the Office of Personnel 6 Management, Department of Labor, and California Industrial Welfare Commission. 7 8 C. Agency’s “Limited Burden” at Step Five 9 10 The claimant bears the burden at steps one through four to show that she is disabled, or 11 that she meets the requirements to proceed to the next step, and the claimant bears the 12 ultimate burden to show that she is disabled. Molina, 674 F.3d at 1110; Johnson v. Shalala, 13 60 F.3d 1428, 1432 (9th Cir. 1995). However, at step five, the ALJ has a “limited” burden 14 of production to identify other work that the claimant can perform in light of her RFC and 15 her age, education, and work experience. See 20 C.F.R. §§ 404.1560(c), 416.966; see also 16 Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (limited burden shifts to Commissioner 17 at step five to show that there is work in national economy that claimant can do); 18 McCollough v. Colvin, No. 16-CV-1166-JLS(WVG), 2017 WL 2797079, at *2 (S.D. Cal. 19 June 28, 2017) (unpublished) (SSA has limited burden at step five to show that claimant can 20 perform other work in national economy). 21 22 The other work identified at step five must exist in “significant numbers” in the 23 “national economy,” which is defined as either “the region where you live or in several other 24 regions of the country.” 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. §§ 404.1566(a), 416.996(a); 25 see also 42 U.S.C. § 423(d)(2)(A). The regulations state that “[w]ork exists in the national 26 economy when there is a significant number of jobs (in one or more occupations) having 27 requirements which you are able to meet with your physical or mental abilities and 28 vocational qualifications.” 20 C.F.R. § 416.966(b); see also 20 C.F.R. § 404.1566(b). 10 1 To determine whether such work exists in “significant numbers” in the national 2 economy, an ALJ may use the services of a VE or other specialist. 20 C.F.R. 3 §§ 404.1566(e), 416.966(e). The Agency may also take “administrative notice” of “reliable 4 job information” that is available from a non-exclusive list of “various governmental and 5 other publications” set forth in the regulations, including: (1) the Dictionary of Occupational 6 Titles (“DOT”); (2) County Business Patterns (a publication of the Census Bureau); (3) 7 Census Reports; (4) Occupational Analyses (prepared for the SSA by various State 8 employments agencies); and (5) the Occupational Outlook Handbook, (published by the 9 Bureau of Labor Statistic). See 20 C.F.R. §§ 404.1566(d), 416.966(d); see also Bayliss v. 10 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“An ALJ may take administrative notice of 11 any reliable job information, including information provided by a VE.”) (citation omitted). 12 A VE’s recognized expertise provides the necessary foundation for his or her testimony, and 13 no additional foundation is required before the ALJ may rely on the VE’s un-questioned or 14 un-rebutted testimony. Bayliss, 427 F.3d at 1217-18. 15 16 17 D. Plaintiff Waived Any Challenge to the Validity of the Numerosity Determination. 18 19 Plaintiff argues that the ALJ’s RFC determination incorporates an “accommodation” 20 that was not explicitly posited to the VE, and that the VE did not explicitly opine would be 21 available for the three jobs that the VE found that Plaintiff could still do. Plaintiff argues 22 that the “15-minute breaks,” to be taken every two hours, apparently three times a day, 23 would not be explicitly authorized under California law, which only requires a 10-minute 24 break every two hours. In other words, in order to take a 15-minute break at a job in 25 California, Plaintiff would have to find an employer who would accommodate such a 15- 26 minute break, since it would not be required by law. 27 questionable whether the labor laws in other states would authorize 15-minute breaks. 28 11 Plaintiff also argues that it is 1 2 At the second hearing, Plaintiff’s attorney asked the VE to “explain the methodology that you used to arrive at the [job] numbers that [she] stated.” (AR 91.) The VE replied 3 4 I relied upon today at least – sometimes I rely upon the OES, the Occupational 5 Employment Statistics. But today, Census statistics that are proffered by United 6 Staff Publishing via downloads from the Census Department and the 7 Department of Labor. Now this gives us Census code numbers, a Census code 8 categories, which, and I felt the same way about statistics. 9 10 (AR 92.) The VE also testified that, if Plaintiff were required to elevate her legs to waist 11 level for 15 minutes every two hours, this requirement “would not” “impact” the jobs she 12 had previously opined that Plaintiff could perform. (AR 88.) Plaintiff’s attorney did not ask 13 the ALJ if Plaintiff could submit supplemental briefing regarding the VE’s job numbers, and 14 she did not raise new evidence casting doubt on the VE’s jobs estimate before the Appeals 15 Council. Cf. Shaibi v. Berryhill, __ F.3d __, 2017 WL 3598085, at *7 (9th Cir. Aug. 22, 16 2017) (plaintiff does not waive challenges to a VE’s job estimates if she requests to submit 17 supplemental briefing or interrogatories on those estimates or raises new evidence before the 18 Appeals Council casting doubt on the VE’s job estimates). 19 20 Nevertheless, relying primarily on the judicially noticeable information offered in this 21 proceeding, Plaintiff argues that substantial jobs do not exist in the national economy that 22 would allow Plaintiff the necessary 15 minutes breaks. (Joint Stip. at 5-8.) Defendant 23 responds that Plaintiff “waived” these arguments by failing to raise them in the hearing 24 before the ALJ or during Plaintiff’s request for review from the Appeals Council. (Joint 25 Stip. at 9-10.) For the reasons discussed below, the Court finds that Plaintiff, who was 26 represented by counsel in the administrative proceedings, waived the issue by failing to raise 27 it the administrative appeal process. 28 12 1 Defendant relies on Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999) (as amended June 2 22, 1999). (Joint Stip. at 9-10.) In Meanel, the Ninth Circuit held that when a claimant who 3 is represented by counsel has failed to raise an issue at the hearing before the ALJ, and failed 4 to present such an issue to the Appeals Council, and only presented the issue for the first 5 time to a reviewing district court, the issue is waived. Meanel, 172 F.3d at 111 (citations 6 omitted). The Ninth Circuit noted that “[w]e will only excuse a failure to comply with this 7 rule when necessary to avoid a manifest injustice.” Id. at 1115. 8 9 In a more recent case, Shaibi v. Berryhill, No. 15-16849, ___F.3d ___, 2017 WL 10 3598085 (9th Cir. Aug. 22, 2017), the Ninth Circuit found that a plaintiff had waived a 11 challenge to the factual basis for a VE’s estimate of the number of available jobs in the 12 regional and national economies because he did not raise this challenge before either the 13 ALJ or the Appeals Council before arguing to the federal district court that the VE’s job 14 estimates “‘deviated from listed sources of administrative notice.’”2 Id. at *5 (internal 15 quotation marks in original). The Ninth Circuit acknowledged that the reliability of, or 16 evidentiary basis for, a VE’s job numbers is a recurring issue in the federal courts and noted 17 the following: 18 19 [W]e have issued no precedential opinion concerning when a Social Security 20 claimant must, absent a showing of good cause, challenge the evidentiary basis 21 of a vocational expert’s job numbers to preserve the issue for litigation in the 22 district court. We now hold that when a claimant fails entirely to challenge a 23 vocational expert’s job numbers during administrative proceedings before the 24 agency, the claimant waives such a challenge on appeal, at least when that 25 claimant is represented by counsel. 26 27 2 28 In Shaibi, the claimant also challenged the ALJ’s RFC determination in district court, but that analysis is not relevant to the issue Plaintiff presents here. See Shaibi, 2017 WL 3598085 at *10-12. 13 1 Id. at *6. The Ninth Circuit reasoned that this conclusion was compelled by previous 2 decisions, particularly Meanel, where the circuit court emphasized that the agency – either 3 the ALJ or the Appeals Council – as opposed to the federal court “was in the optimal 4 position to resolve the conflict between [the claimant’s] new evidence and the statistical 5 evidence provided by the VE.” Id. (citing Meanel, 172 F.3d at 1115). 6 7 Shaibi and Meanel, are dispositive here. Plaintiff was represented by counsel at both 8 ALJ hearings. (See AR 49 (identifying Denise Haley as claimant attorney); 96 (Ernie 9 Bartlett, claimant attorney); and Joint Stip. at 11 (acknowledging that counsel was present at 10 the hearing).) It is undisputed that Plaintiff did not challenge, or request supplemental 11 briefing on, the VE’s job number estimates in any administrative proceedings, including 12 those before the Appeals Council, even though the newly obtained information presented in 13 support of her appeal, appears to have been readily accessible through internet searches of 14 the relevant agency websites. Indeed, Plaintiff concedes that “[t]he break schedule was 15 taken for granted by all” and, therefore, “not fully explored.” (Joint Stip. at 11.) Plaintiff 16 contends that it was only “[w]hen the vocational advisor’s testimony is compared to the 17 regulations where break periods are not required, the issue became apparent.” (Id.) 18 19 However, Plaintiff makes no showing or argument demonstrating good cause for her 20 failure to present this issue to the Appeals Council nor does she establish that a “manifest 21 injustice” would ensue from a finding of waiver. See Meanel, 172 F.3d at 1115. Indeed, 22 Plaintiff offers no explanation for her failure to present the Appeals Council with the 23 publicly available information now at issue, and she has not established that the ALJ 24 necessarily erred by relying on the VE’s estimates – only that the VE’s estimates are 25 questionable given state labor laws. (See generally Joint Stip. at 6); see also Angevine v. 26 Colvin, 542 Fed. Appx. 589, 591 (9th Cir. Oct. 16, 2013) (“in light of the clarity and nature 27 of the legal error alleged, we find that review of the issue is ‘necessary to avoid a manifest 28 injustice’”) (citing Gregor v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006)). 14 1 Accordingly, consistent with Shaibi and Meanel, this Court finds that Plaintiff waived 2 the issue presented here by failing to challenge to the validity of the VE’s opinions about the 3 availability of alternative jobs that Plaintiff can perform based on her RFC in the 4 administrative appeal process. 5 6 ORDER 7 8 9 For the reasons stated above, IT IS ORDERED that the decision of the Commissioner is AFFIRMED. 10 11 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 12 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for 13 defendant. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 18 19 DATE: August 25, 2017 ________________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 15

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