Xavier Hernandez v. National Steel & Shipbuilding Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XAVIER HERNANDEZ,
Petitioner,
v.
NATIONAL STEEL & SHIPBUILDING
COMPANY; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION
PROGRAMS,
Respondents.
No. 18-72944
BRB No. 18-0222
MEMORANDUM*
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).
FILED
JUN 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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.

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