Opinion
21-35821
10-21-2022
DARRELL HESTER, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
Submitted October 19, 2022 [**] Seattle, Washington
Appeal from the United States District Court for the Western District of Washington Sarah Kate Vaughan, Magistrate Judge, Presiding D.C. No. 2:21-cv-00228-SKV
Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.
MEMORANDUM [*]
Darrell Hester challenges the administrative law judge (ALJ)'s denial of his application for disability insurance benefits as well as Supplemental Security Income benefits arguing that (1) at step four of the sequential analysis the ALJ failed to consult with a medical expert (ME) when determining Hester's alleged disability onset date and (2) the ALJ improperly rejected evidence that was untimely submitted.
A third issue on appeal challenging the constitutionality of the Social Security Commissioner's tenure has since been withdrawn in light of our recent opinion in Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 2022).
We review de novo a district court's decision regarding the Commissioner's disability determination. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). If substantial evidence and a correct application of the law supports the Commissioner's decision, we must affirm. Id. This Court has jurisdiction under 28 U.S.C. § 1291. For the following reasons, we affirm the denial of benefits.
The ALJ did not err when he did not call a ME to determine the disability onset date of May 1, 2020. Social Security Ruling (SSR) 18-01 plainly states that the ALJ "may, but is not required to, call upon the services of a [ME] to assist with inferring the date that the claimant first met the statutory definition of disability." SSR 18-01, 2018 WL 4945639 (Oct. 2, 2018). The record reveals that substantial evidence supported the ALJ's finding. Because the ALJ was not required to call a ME and substantial evidence supports the determination at step four, we affirm the denial of benefits.
"[SSRs] do not carry the force of law, but they are binding on ALJs nonetheless. They reflect the official interpretation of the SSA and are entitled to some deference as long as they are consistent with the Social Security Act and regulations." Molina v. Astrue, 674 F.3d 1104, 1113 n.5 (9th Cir. 2012) (superseded by regulation on other grounds) (quotations and citations omitted).
Hester next contends that the ALJ should have allowed him to file supplemental evidence at step five and that the ALJ inappropriately relied on 20 C.F.R. § 416.1435(b) in excluding that evidence. The ALJ gave Hester three days post-hearing to submit additional evidence to rebut the vocational expert's testimony. Hester did not submit the evidence until after the deadline given by the ALJ without explanation as to its tardiness. The ALJ did not rely on 20 C.F.R. § 416.1435(b) in denying Hester the ability to submit additional evidence. Instead, the ALJ cited by analogy to that section of the regulations as illustrating permissible excuses, such as death or serious illness, justifying admission of evidence which may not have been submitted in a timely fashion. The AJL acted within his discretion when he did not accept the unexplained late filing and did not misapply 20 C.F.R. § 416.1435(b).
AFFIRMED.
[*] 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).