Magdalena Shapiro v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAGDALENA SHAPIRO,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 20-15505
D.C. No. 2:18-cv-01411-DJA
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Daniel J. Albregts, Magistrate Judge, Presiding
Submitted January 13, 2021**
San Francisco, California
Before: BEA and M. SMITH, Circuit Judges, and RESTANI,*** Judge.
Plaintiff-Appellant Magdalena Shapiro (Shapiro), a 49-year-old woman
suffering from various medical impairments, appeals an order of the district court
* 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 Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
JAN 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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affirming the decision of the Commissioner of Social Security (Commissioner)
denying her disability insurance benefits. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm the district court’s decision.
“[W]e review de novo the district court's order upholding a decision of the
Commissioner denying benefits to an applicant.” Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (citation omitted). The
Commissioner’s findings of fact “if supported by substantial evidence, shall be
conclusive[.]” 42 U.S.C. § 405(g). In Shapiro’s hearing before an Administrative
Law Judge (ALJ), a vocational expert (VE) testified that while Shapiro could not
perform her past work, she could perform other jobs that exist in significant
numbers in the national economy. Based on the VE’s estimates, the ALJ found at
Step Five that Shapiro was not disabled.
“[A]t 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).1 A claimant should
challenge a VE’s estimates through cross-examination by “rais[ing] the job-
numbers issue in a general sense before the ALJ.” Shaibi v. Berryhill, 883 F.3d
1 The court has applied this exhaustion standard to non-attorney representatives as
well. See Keifer v. Saul, 789 F. App’x 581, 582 (9th Cir. 2020) (unpublished)
(holding that claimant “represented by a lay representative…forfeited any
challenge to the VE’s job numbers because she failed to raise the issue during the
administrative hearing.”).

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1102, 1110 (9th Cir. 2017). After the hearing, an ALJ would ordinarily “permit the
claimant to submit supplemental briefing or interrogatories” with their own job
numbers. Id. If the ALJ declines to accept supplemental evidence, “a claimant may
raise new evidence casting doubt on a VE’s job estimates before the Appeals
Council, provided that evidence is both relevant and ‘relates to the period on or
before the ALJ’s decision.’” Id. (citing Brewes v. Comm’r of Soc. Sec. Admin., 682
F.3d 1157, 1162 (9th Cir. 2012)).
Shapiro and her representative declined to cross-examine the VE during the
hearing, and Shapiro does not argue that she requested an opportunity to submit
interrogatories or supplemental briefing for the ALJ to consider. Instead, Shapiro
submitted new evidence on job numbers contesting the VE’s estimates to the
Appeals Council. Because she was represented and did not challenge the VE’s job
numbers during the hearing before the ALJ, Shapiro “forfeits such a challenge on
appeal[.]” Shaibi, 883 F.3d at 1109; Meanel, 172 F.3d at 1115. Under Shaibi, the
submission of new evidence to the Appeals Council does not resolve the forfeiture
issue, because the issue was not first raised before the ALJ. See 883 F.3d at 1109–
10 (citing Brewes, 682 F.3d at 1162).
The Commissioner was also under no obligation to sua sponte resolve a
conflict between job numbers provided by Shapiro and the VE’s testimony because
the job numbers came from sources other than the Dictionary of Occupational

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Titles. See Shaibi, 883 F.3d at 1109 n.6; Ford v. Saul, 950 F.3d 1141, 1160 (9th
Cir. 2020).
Accordingly, the district court judgment is AFFIRMED.

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