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Mohammed Shaibi v. Berryhill

United States Court of Appeals, Ninth Circuit

February 28, 2018

Maged Saleh Mohammed Shaibi, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued and Submitted May 18, 2017 San Francisco, California

          Amended February 28, 2018

         Appeal from the United States District Court for the Eastern District of California Stanley A. Boone, Magistrate Judge, Presiding D.C. No. 1:14-cv-00948-SAB

          Lawrence D. Rohlfing (argued), Santa Fe Springs, California, for Plaintiff-Appellant.

          Daniel Paul Talbert (argued), Esther Kim, and Shea Lita Bond, Special Assistant United States Attorneys; Deborah Lee Stachel, Regional Chief Counsel, Region IX; Phillip A. Talbert, United States Attorney; Social Security Administration, San Francisco, California; for Defendant-Appellee.

          Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges, and Jon P. McCalla, District Judge. [*]

         ORDER AND AMENDED OPINION

         SUMMARY [**]

         Social Security

         The panel amended the opinion filed on August 22, 2017, and affirmed the denial of an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq.

         The panel held that the ALJ's residual functional capacity determination was supported by substantial evidence and was not inconsistent with the opinions of two physicians regarding claimant's capability for interaction with colleagues. The panel further held that a Social Security claimant who wishes to challenge the factual basis of a vocational expert's estimate of the number of available jobs in the regional and national economies must raise this challenge before administrative proceedings have concluded in order to preserve the challenge on appeal in federal district court. Because in this case, the claimant did not challenge the accuracy of the vocational expert's job numbers during the administrative proceedings, his claim was forfeited.

         ORDER

         The opinion filed on August 22, 2017, and published at 870 F.3d 874, is hereby amended.

         The petition for panel rehearing and for rehearing en banc is DENIED. The full court has been advised of the suggestion for rehearing en banc, and no judge has requested a vote. Fed. R. App. P. 35. No further petitions for rehearing may be filed in this case.

          OPINION

          BERZON, CIRCUIT JUDGE

         Maged Saleh Shaibi appeals the denial of his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. In addition to contesting the Administrative Law Judge's ("ALJ") evaluation of medical opinions, a challenge we reject, Shaibi's case presents a familiar and recurring question: whether a Social Security claimant who wishes to challenge the factual basis of a vocational expert's estimate of the number of available jobs in the regional and national economies must raise this challenge before administrative proceedings have concluded. We hold that such a claimant must, at a minimum, raise the issue of the accuracy of the expert's estimates at some point during administrative proceedings to preserve the challenge on appeal in federal district court.

         I. Background

         Shaibi suffers from a litany of physical and psychological impairments, including lumbosacral degenerative disc disease, depressive disorder, anxiety disorder, diabetes, obesity, and osteoarthritis. He is limited in his ability to perform the following tasks: sitting or standing for extended periods of time; walking long distances without the use of a cane; and carrying objects weighing ten pounds or more.

         Until 2010, Shaibi worked as a cashier. Shaibi applied for disability benefits in May of 2011, claiming that he was no longer able to work because of depression, pain, insomnia, anxiety, high cholesterol, and high blood pressure. His application was denied in September of 2011. Shaibi then ...


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