CARLOS ALBERTO GONZALEZ, Jr. v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALBERTO GONZALEZ, Jr.,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 18-55220
D.C. No. 2:17-cv-05402-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Charles F. Eick, Magistrate Judge, Presiding
Submitted January 11, 2021**
Before: GOODWIN, CANBY, and LEAVY, Circuit Judges.
Carlos Alberto Gonzalez, Jr., appeals the district court’s affirmance of the
Commissioner of Social Security’s denial of his application for supplemental
security income under 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.
* 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).
FILED
JAN 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
Gonzalez argues on appeal that the administrative law judge (“ALJ”) erred
in relying on vocational expert testimony that allegedly conflicted with the Bureau
of Labor Statistics’ Occupational Outlook Handbook (“OOH”), and an associated
publication called the Occupational Information Network (“O*Net”).
The ALJ held that Gozalez was able to perform the positions of production
assembler and cleaner polisher, which existed in sufficient numbers in the
economy. Gonzalez failed to raise the argument before the ALJ or the Appeals
Council that this ruling was in apparent conflict with the OOH because of the
educational or training requirements. 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). Failure to raise the claim before either the ALJ or the Appeals Council
results in forfeiture of the argument. Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th
Cir. 2017).
Gonzalez contends that the ALJ had an obligation to consider the OOH sua
 The Commissioner conceded in the district court that the ALJ had erred in not
resolving a conflict between Gonzalez’s residual functional capacity for simple and
routine tasks and the Dictionary of Occupational Titles’ classification for a cashier
position requiring a reasoning level of three. The district court properly ruled this
error to be harmless because the vocational expert had identified two other
positions that Gonzalez could perform. See Shaibi v. Berryhill, 833 F.3d 1102,
1110 n.7 (9th Cir. 2017).

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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 control here.
Forfeiture of an issue will be excused only when necessary to avoid a
manifest injustice. Meanel, 172 F.3d at 1115. Gonzalez has not demonstrated a
manifest injustice will result, and has forfeited his challenge to the ALJ’s
conclusion at Step 5 by failing to raise the challenge before the agency.
AFFIRMED.

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