Fernando M. Vizcarra v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO M. VIZCARRA,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 18-55631
D.C. No. 5:16-cv-01736-DFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Douglas F. McCormick, Magistrate Judge, Presiding
Submitted January 11, 2021**
Before: GOODWIN, CANBY, and LEAVY, Circuit Judges.
Fernando M. Vizcarra appeals the district court’s affirmance of the
Commissioner of Social Security’s 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. §
* 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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405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016),
and we affirm.
Vizcarra’s sole argument on appeal is that the administrative law judge
(“ALJ”) erred by failing to resolve a purported conflict between the vocational
expert’s 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

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manifest injustice. Meanel, 172 F.3d at 1115. Vizcarra has not demonstrated a
manifest injustice will result, and has forfeited his challenge to the ALJ’s Step Five
determination.
AFFIRMED.

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