VIZCARRA v. SAUL (2021)

United States Court of Appeals, Ninth Circuit.2021-01-13No. No. 18-55631

Summary · law.co

Holding. The court affirmed the denial of benefits because the claimant forfeited his argument by failing to raise it before the ALJ or Appeals Council, and the claimant did not demonstrate that manifest injustice would result from applying the forfeiture rule.

Fernando Vizcarra appealed the denial of his application for disability benefits, arguing on appeal that the administrative law judge failed to address an apparent inconsistency between a vocational expert's testimony and information contained in the Occupational Outlook Handbook and the Occupational Information Network. However, Vizcarra did not raise this argument during his administrative hearing before the ALJ or before the Appeals Council. Because he was represented by counsel and failed to present the issue at the administrative stage, he forfeited the right to raise it on appeal. The court rejected Vizcarra's alternative argument that the ALJ was required to independently consider these reference materials under administrative notice rules, finding that prior precedent foreclosed this theory. Vizcarra did not show that denying review would cause a manifest injustice.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether claimant must raise arguments at the administrative level to preserve them for appeal
Whether ALJ must sua sponte consider the Occupational Outlook Handbook and Occupational Information Network
Whether failure to raise an issue before the Appeals Council results in forfeiture

Procedural posture

The claimant appealed the district court's affirmance of the Social Security Commissioner's denial of disability benefits.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Fernando M. Vizcarra appeals the district courts affirmance of the Commissioner of Social Securitys denial of his application for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.

Vizcarras sole argument on appeal is that the administrative law judge (“ALJ”) erred by failing to resolve a purported conflict between the vocational experts testimony and the Bureau of Labor Statistics’ Occupational Outlook Handbook (“OOH”) and an associated publication called the Occupational Information Network (“O*Net”). Vizcarra failed to raise this argument before the ALJ or the Appeals Council. Generally, where “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). By failing to raise the claim before either the ALJ or the Appeals Council, Vizcarra has forfeited this argument. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017).

Vizcarra contends that the ALJ had an obligation to consider the OOH sua sponte because the OOH is subject to administrative notice under 20 C.F.R. § 404.1566(d). This court rejected that argument in Shaibi, 883 F.3d at 1109-10 & n.6. The fact that Shaibi rejected the argument in the context of considering the number of jobs in the economy rather than the ability to perform particular jobs does not distinguish its reasoning or holding, which we apply here.

Forfeiture of an issue will be excused only when necessary to avoid a manifest injustice. Meanel, 172 F.3d at 1115. Vizcarra has not demonstrated a manifest injustice will result, and has forfeited his challenge to the ALJs Step Five determination.

AFFIRMED.