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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALLEN B. FLORES, No. 20-71297 Petitioner,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 2 of another.”). AFFIRMED. 3