                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 4 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SCOTT GABRIEL HOLDEN,                           No.    16-16622

                Plaintiff-Appellant,            D.C. No. 3:15-cv-05016-SK

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Northern District of California
                     Sallie Kim, Magistrate Judge, Presiding

                    Argued and Submitted November 14, 2017
                            San Francisco, California

Before: GOULD and MURGUIA, Circuit Judges, and GRITZNER,** District
Judge.

      Scott Gabriel Holden appeals the denial of his application for Disability

Insurance Benefits and Supplemental Security Income. Holden challenges only the

Magistrate Judge’s holding that the Administrative Law Judge (ALJ) did not err in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
accepting the testimony of the vocational expert without sua sponte checking

whether the expert’s testimony conflicted with the Occupational Outlook

Handbook (OOH) published by the Bureau of Labor Statistics. We review de novo

a decision upholding the denial of Social Security benefits. Valentine v. Comm’r

of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). We affirm.

      In March 2012, Holden applied for social security benefits. His claim was at

first rejected, but eventually he received a hearing before an ALJ on March 24,

2014. Holden was present at the hearing, as was his non-attorney representative,

Dan McCaskell. At the hearing, vocational expert Howard J. Goldfarb testified.

The vocational expert stated that his testimony was consistent with information in

the Dictionary of Occupational Titles and the Selected Characteristics of

Occupations. Holden and his representative had no questions for the vocational

expert.

      In the decision following the hearing, the ALJ found that Holden was not

disabled under the relevant statute. After proceeding through the first four steps of

the analysis, the ALJ found at step five that Holden’s residual functional capacity

let him perform a significant number of jobs available in the national economy.

Based on the testimony of the vocational expert, the ALJ specifically identified

three representative jobs that Holden could perform. Because those three jobs




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represented a significant number of jobs in the national economy, the ALJ

determined that Holden was not entitled to disability benefits.

      On appeal, Holden contends that the ALJ committed legal error in not

addressing a conflict between the OOH and the vocational expert’s testimony

regarding the number of jobs available in the national economy, even though

Holden did not raise this conflict to the ALJ.

      As we recently held in Shaibi v. Berryhill, an ALJ has no obligation to sua

sponte take judicial notice of the OOH. 883 F.3d 1102, 1109 (9th Cir. 2017) as

amended (Feb. 28, 2018). “Our precedent holds, instead, that an ALJ may rely on

a vocational expert’s testimony concerning the number of relevant jobs in the

national economy, and need not inquire sua sponte into the foundation for the

expert’s opinion.” Id. at 1109–10 (citing Bayliss v. Barnhart, 427 F.3d 1211, 1218

(9th Cir. 2005); Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995)). We

conclude that there was no error in the ALJ’s decision to rely on the vocational

expert’s testimony without consulting the OOH.

      Holden argues in his supplemental briefing that he should be allowed to

raise a challenge to the ALJ’s decision for the first time on appeal in the absence of

any error by the ALJ because he—unlike the appellant in Shaibi—was not

represented by an attorney. But we deem that argument to have been waived

because it was not raised to the district court or in Holden’s opening brief. See



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Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). We have previously stated

that “at 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). Holden, therefore, could

have argued in his opening brief and before the district court that he was entitled to

raise this challenge on appeal because he did not have an attorney at the

administrative hearing, even though the ALJ made no error and Holden did not

offer the OOH during the hearing. Because Holden did not do so, we hold that that

argument was waived and so do not reach it.

      AFFIRMED.




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