Michael Frugoli v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL LEE FRUGOLI, No. 16-56232
Plaintiff-Appellant, D.C. No. 5:15-cv-02227-MRW
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael R. Wilner, Magistrate Judge, Presiding
Submitted August 7, 2018**
Pasadena, California
Before: HAWKINS and CHRISTEN, Circuit Judges, and HOYT,*** District
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 Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
Michael Lee Frugoli, (“Frugoli”), appeals the denial of his application for
social security disability benefits. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing de novo, see Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010)
(citing Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1222 (9th
Cir. 2009)), we affirm.
Frugoli contends that the administrative law judge (“ALJ”) failed to resolve
a “facial conflict” between the Vocational Expert’s (“VE”) testimony, the
Dictionary of Occupational Titles, and the Occupational Outlook Handbook.
Frugoli was represented by counsel before the ALJ, and did not raise this
argument. By failing to “even obliquely suggest that the VE’s” occupational-
requirements opinion “might be unreliable at any point during administrative
proceedings[,]” Frugoli forfeited his argument. See Shaibi v. Berryhill, 883 F.3d
1102, 1109 (9th Cir. 2017).1
AFFIRMED.
1
Given this conclusion, the ALJ’s alleged error in failing to resolve
occupational-requirements conflicts regarding the counter clerk and bench
assembler positions is harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th
Cir. 2012) (holding “that an ALJ’s error is harmless where it is ‘inconsequential to
the ultimate nondisability determination’” (quoting Carmickle v. Comm’r, Soc.
Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008))).
2