Isis Nix v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2023
• Docket: 22-55736
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISIS NIX, No. 22-55736

Plaintiff-Appellant, D.C. No. 2:20-cv-03860-SHK v.

KILOLO KIJAKAZI, Commissioner of MEMORANDUM* Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Shashi H. Kewalramani, Magistrate Judge, Presiding

Submitted November 8, 2023** Pasadena, California

Before: WALLACE, FLETCHER, and OWENS, Circuit Judges.

Plaintiff-Appellant, Isis Nix, appeals from the district court’s judgment

affirming the Social Security Administration’s determination that she was not

entitled to disability benefits or supplemental income because she was not disabled

* 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). 1 within the meaning of the Social Security Act of 1935, 42 U.S.C. §§ 416, 423 and

1382c(a)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291. Although we

review the district court’s decision affirming a denial of benefits de novo, we must

affirm if the administrative law judge’s (ALJ) factual findings were supported by

substantial evidence and the ALJ’s decision was free from legal error. Miskey v.

Kijakazi, 33 F.4th 565, 570 (9th Cir. 2022). We affirm.

1. The ALJ did not err in finding that the position of “Office Helper” existed

in significant numbers in the national economy. DOT 239.567-010, 1991 WL

672232 (1991). Speculation about possible technological advancements does not

create an obvious or apparent unresolved conflict between a vocational expert’s

(VE) testimony and the DOT. Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir.

2016); SSR 00-4p, 2000 WL 1898704, at *4 (2000). Nor is an ALJ required to

inquire into potential conflicts between a VE’s testimony and resources other than

the DOT and its companion publication, the Selected Characteristics of Occupations

Defined in the Revised Dictionary of Occupational Titles (SCO). See Shaibi v.

Berryhill, 883 F.3d 1102, 1109–10 (9th Cir. 2017); SSR 00-4p, 2000 WL 1898704,

at *2.

The VE testified that 36,000 “Office Helper” jobs exist nationally. This

uncontroverted testimony is reliable, White v. Kjjakazi, 44 F.4th 828, 835 (9th Cir.

2022), and qualifies as a “significant” number of jobs “exist[ing] in the national

2 economy.” See 42 U.S.C. § 1382c(a)(3)(B); Gutierrez v. Comm’r of Soc. Sec., 740

F.3d 519, 527–28 (9th Cir. 2014).

2. Nix waived her argument that the ALJ violated SSR 16-3p by improperly

evaluating her subjective testimony because she failed to raise it before the district

court. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). This court’s review of

the claim is not necessary to prevent a miscarriage of justice or to preserve the

integrity of the judicial process when the record shows significant evidence rebutting

Nix’s subjective testimony. Smartt v. Kijakazi, 53 F.4th 489, 500–01 (9th Cir. 2022),

citing Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (discussing this court’s

exceptions to the general rule that issues raised for the first time on appeal are not

considered, none of which apply here).

AFFIRMED.