Xavier Hernandez v. National Steel & Shipbuilding

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 18-72944
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XAVIER HERNANDEZ, No. 18-72944

Petitioner, BRB No. 18-0222

v. MEMORANDUM* NATIONAL STEEL & SHIPBUILDING COMPANY; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Submitted June 11, 2019**

Before: WALLACE, FARRIS, and TROTT, Circuit Judges.

Xavier Hernandez petitions for review of the United States Department of

Labor’s Benefits Review Board’s decision and order affirming an administrative

law judge’s (“ALJ”) decision and order awarding benefits under the Longshore and

* 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). Harbor Workers’ Compensation Act. We have jurisdiction under 33 U.S.C.

§ 921(c). We review the Board’s decision on questions of law de novo, and its

review of the ALJ’s factual findings for adherence to the substantial evidence

standard. Fenske v. Serv. Emps. Int’l, Inc., 835 F.3d 978, 980 (9th Cir. 2016). We

deny the petition for review.

Substantial evidence supports the Board’s decision and the ALJ’s finding

that Hernandez established a 25% permanent partial disability of his left lower

extremity but failed to show that a work-related injury to his back and hip was

disabling. See 33 U.S.C. § 902(10) (defining disability); Christie v. Georgia-Pac.

Co., 898 F.3d 952, 956 (9th Cir. 2018) (the ALJ must determine whether

claimant’s work injury caused a loss of earning capacity). The ALJ reasonably

interpreted Dr. Raiszadeh’s report as not restricting Hernandez from working based

on his hip and back injury because, after examining Hernandez’s back and

reviewing his medical records, Dr. Raiszadeh diagnosed both a left knee condition

and a back condition, but did not specify which of these conditions led to the

limitations that he assessed. See Duhagon v. Metro. Stevedore Co., 169 F.3d 615,

618 (9th Cir. 1999) (holding that ALJ’s findings must be accepted unless they are

contrary to the law, irrational, or unsupported by substantial evidence). Hernandez

had the burden to establish by a preponderance of evidence that he had restrictions

due to his back and hip condition that render him unable to perform his usual work.

2 The ALJ determined that Hernandez did not meet his burden. The Board affirmed

the ALJ’s determination because it was “rational and supported by substantial

evidence.” We detect no error in either conclusion.

PETITION FOR REVIEW DENIED.