NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 13 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO M. VIZCARRA, No. 18-55631

Plaintiff-Appellant, D.C. No. 5:16-cv-01736-DFM

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

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). 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

2 18-55631 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.

3 18-55631