Dolores Montoya v. Navy Exchange Service Command ( 2019 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DOLORES MONTOYA, No. 17-72136
Petitioner, BRB No. 16-0599
v.
MEMORANDUM*
NAVY EXCHANGE SERVICE
COMMAND and DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION
PROGRAM,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Submitted March 8, 2019**
Pasadena, California
Before: KLEINFELD, NGUYEN, and R. NELSON, Circuit Judges.
Dolores Montoya petitions for review the decision of the Benefits Review
Board (the “Board”) upholding the Administrative Law Judge’s denial of
*
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).
permanent total disability benefits under the Longshore and Harbor Worker’s
Compensation Act, 33 U.S.C. § 901 et seq., as extended by the Non-Appropriated
Fund Instrumentalities Act, 5 U.S.C. § 8171 et seq. We have jurisdiction pursuant
to 33 U.S.C. § 921(c). We deny the petition for review.
The Board’s decisions are reviewed for errors of law and adherence to the
substantial evidence standard after an “independent review of the administrative
record.” Van Skike v. Dir., Office of Workers’ Comp. Programs, 557 F.3d 1041,
1045 (9th Cir. 2009); see also Christie v. Georgia-pacific Co., 898 F.3d 952, 956
(9th Cir. 2018) (“The Board is required to accept the ALJ’s findings unless they
are contrary to law, irrational, or unsupported by substantial evidence.” (citations
and internal quotation marks omitted)). “A decision by the [Board] is supported by
substantial evidence if there exists ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Van Skike, 557 F.3d at1045–46 (citation omitted).
The Board’s decision is supported by substantial evidence. Montoya failed
to rebut the Navy Exchange Service Command’s identification of suitable
alternative employment on August 10, 2012, through a “diligent” yet unsuccessful
job search. Kalama Servs., Inc. v. Dir., Office of Workers’ Comp. Programs, 354
F.3d 1085, 1090 (9th Cir. 2004); see also Rhine v. Stevedoring Servs. of Am., 596
2
F.3d 1161, 1166 (9th Cir. 2010) (citing with approval Board decision holding that
“[c]laimant may not retain entitlement to total disability benefits merely by
alleging that he did not seek work because he was unsure if he would be hired”
(alteration in original) (citation omitted)). The only specific attempt to obtain
employment in the record is Montoya’s asking a woman selling curling irons at a
mall kiosk about a job, after which Montoya “gave up,” and made no further
efforts. Substantial evidence thus supported the Board’s decision that Montoya did
not make a “diligent” search for employment.1 Kalama, 354 F.3d at 1090. Even
accepting the “reasonable person” standard for which Montoya argues, the Board’s
conclusion is supportable on the record.2 See Rhine, 596 F.3d at 1166.
The petition for review is denied.
1
We similarly reject the argument, if any, that the Navy Exchange did not
identify suitable alternative employment based on Montoya’s alleged inability to
seek employment without assistance. See Hairston v. Todd Shipyards Corp., 849
F.2d 1194, 1196 (9th Cir. 1988) (holding that the Board should inquire “whether
there exists a reasonable likelihood” the claimant, considering his specific
characteristics, would be hired “if he diligently sought the job” in determining the
availability of suitable alternative employment).
2
Although Montoya argues that she lacked the capacity to seek employment
on her own, the evidence also suggests she could have asked her daughter or
husband for the necessary minimal assistance.
3