Scott Holden v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT GABRIEL HOLDEN, No. 16-16622
Plaintiff-Appellant, D.C. No. 3:15-cv-05016-SK
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding
Argued and Submitted November 14, 2017
San Francisco, California
Before: GOULD and MURGUIA, Circuit Judges, and GRITZNER,** District
Judge.
Scott Gabriel Holden appeals the denial of his application for Disability
Insurance Benefits and Supplemental Security Income. Holden challenges only the
Magistrate Judge’s holding that the Administrative Law Judge (ALJ) did not err in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
accepting the testimony of the vocational expert without sua sponte checking
whether the expert’s testimony conflicted with the Occupational Outlook
Handbook (OOH) published by the Bureau of Labor Statistics. We review de novo
a decision upholding the denial of Social Security benefits. Valentine v. Comm’r
of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). We affirm.
In March 2012, Holden applied for social security benefits. His claim was at
first rejected, but eventually he received a hearing before an ALJ on March 24,
2014. Holden was present at the hearing, as was his non-attorney representative,
Dan McCaskell. At the hearing, vocational expert Howard J. Goldfarb testified.
The vocational expert stated that his testimony was consistent with information in
the Dictionary of Occupational Titles and the Selected Characteristics of
Occupations. Holden and his representative had no questions for the vocational
expert.
In the decision following the hearing, the ALJ found that Holden was not
disabled under the relevant statute. After proceeding through the first four steps of
the analysis, the ALJ found at step five that Holden’s residual functional capacity
let him perform a significant number of jobs available in the national economy.
Based on the testimony of the vocational expert, the ALJ specifically identified
three representative jobs that Holden could perform. Because those three jobs
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represented a significant number of jobs in the national economy, the ALJ
determined that Holden was not entitled to disability benefits.
On appeal, Holden contends that the ALJ committed legal error in not
addressing a conflict between the OOH and the vocational expert’s testimony
regarding the number of jobs available in the national economy, even though
Holden did not raise this conflict to the ALJ.
As we recently held in Shaibi v. Berryhill, an ALJ has no obligation to sua
sponte take judicial notice of the OOH. 883 F.3d 1102, 1109 (9th Cir. 2017) as
amended (Feb. 28, 2018). “Our precedent holds, instead, that an ALJ may rely on
a vocational expert’s testimony concerning the number of relevant jobs in the
national economy, and need not inquire sua sponte into the foundation for the
expert’s opinion.” Id. at 1109–10 (citing Bayliss v. Barnhart, 427 F.3d 1211, 1218
(9th Cir. 2005); Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995)). We
conclude that there was no error in the ALJ’s decision to rely on the vocational
expert’s testimony without consulting the OOH.
Holden argues in his supplemental briefing that he should be allowed to
raise a challenge to the ALJ’s decision for the first time on appeal in the absence of
any error by the ALJ because he—unlike the appellant in Shaibi—was not
represented by an attorney. But we deem that argument to have been waived
because it was not raised to the district court or in Holden’s opening brief. See
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Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). We have previously stated
that “at 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). Holden, therefore, could
have argued in his opening brief and before the district court that he was entitled to
raise this challenge on appeal because he did not have an attorney at the
administrative hearing, even though the ALJ made no error and Holden did not
offer the OOH during the hearing. Because Holden did not do so, we hold that that
argument was waived and so do not reach it.
AFFIRMED.
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