Allen Flores v. Pacific Crane Maintenance Comp

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLEN B. FLORES, No. 20-71297
Petitioner, LABR No. BRB No. 19-0386
v.
MEMORANDUM*
PACIFIC CRANE MAINTENANCE
COMPANY; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION
PROGRAMS,
Respondents.
On Petition for Review of an Order of the
Department of Labor
Submitted January 18, 2023**
San Francisco, California
Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.
Allen B. Flores seeks review of the Benefit Review Board’s (BRB) order
affirming an Administrative Law Judge’s (ALJ) decision denying Flores’s claim
for medical benefits and disability compensation pursuant to the Longshore and
Harbor Workers’ Compensation Act. We review BRB decisions for errors of law
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and for adherence to the substantial evidence standard, which governs the BRB’s
review of an ALJ’s factual determinations. Kalama Servs., Inc. v. Dir., Off. of
Workers’ Comp. Programs, 354 F.3d 1085, 1090 (9th Cir. 2004). We do not
consider matters not specifically and distinctly raised and argued in the opening
brief, or arguments and allegations raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). We have
jurisdiction under 33 U.S.C. § 921(c), and we affirm.
The BRB did not err in affirming the ALJ’s finding that Flores was not a
credible witness because the ALJ’s credibility determination did not “conflict with
the clear preponderance of the evidence,” nor was it “inherently incredible or
patently unreasonable.” Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 648 (9th
Cir. 2010) (quoting Todd Pac. Shipyards Corp. v. Dir., Off. of Workers’ Comp.
Programs, 914 F.2d 1317, 1321 (9th Cir. 1990)). The BRB did not err in affirming
the ALJ’s conclusion that Flores failed to establish that any of his injuries were
work-related because the ALJ’s findings as to each injury were supported by
substantial evidence. See Ogawa, 608 F.3d at 648 (“The BRB must accept the
ALJ’s findings unless they are contrary to the law, irrational, or unsupported by
substantial evidence.”) (internal quotation marks and citation omitted); Duhagon v.
Metro. Stevedore Co., 169 F.3d 615, 618 (9th Cir. 1999) (per curiam) (“It is within
the ALJ’s prerogative, as finder of fact, to credit one witness’s testimony over that
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of another.”).
AFFIRMED.
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