Jason Deocampo v. Carolyn W. Colvin ( 2014 )

FILED
NOT FOR PUBLICATION JAN 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON E. DEOCAMPO, No. 12-16116
Plaintiff - Appellant, D.C. No. 2:09-cv-03076-EFB
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Submitted January 16, 2014**
San Francisco, California
Before: O’SCANNLAIN, GRABER, and NGUYEN, Circuit Judges.
Jason DeOcampo appeals from the district court’s grant of summary
judgment to the Commissioner of Social Security. The administrative law judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(ALJ) denied DeOcampo’s application for supplemental security income, and the
Appeals Council declined to reopen DeOcampo’s case.
DeOcampo argues that a Department of Veterans Affairs (VA) disability
rating—issued after the ALJ’s decision—constitutes new and material evidence
requiring a remand for a hearing before the ALJ. See Hoa Hong Van v. Barnhart,
483 F.3d 600, 605 (9th Cir. 2007). DeOcampo has failed to show that there is a
“reasonable possibility” that, had the ALJ considered the VA rating, the result of
the proceedings would have been different. Mayes v. Massanari, 276 F.3d 453,
462 (9th Cir. 2001). Although DeOcampo claims that the ALJ confused his
encounter with police with the alleged shooting of his cousin, the VA’s decision
does not distinguish between these two events. Moreover, before the district court,
DeOcampo conceded that the VA’s decision was based on the same medical
information presented to the ALJ, and he is bound by those concessions. See
Reynoso v. Giurbino, 462 F.3d 1099, 1110 (9th Cir. 2006).
DeOcampo’s argument that Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010),
requires a remand in this case is similarly unavailing. Luna was concerned with
conflicting disability determinations within the same agency, id. at 1034, whereas
DeOcampo’s case presents different disability decisions by different agencies.
Luna is inapposite.
2
DeOcampo also contends that Valentine v. Commissioner Social Security
Administration, 574 F.3d 685 (9th Cir. 2009), requires the ALJ, in particular, to
consider the VA’s rating, regardless of when the VA issued its decision. But
neither Valentine nor this circuit’s related precedents require the ALJ—as opposed
to the Appeals Council—to consider a VA rating issued after the ALJ’s decision,
and the Appeals Council did consider the VA rating in this case. In sum,
DeOcampo has not shown that the agency’s decision lacked substantial evidence or
contained legal error. See Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.
2005).
Because DeOcampo failed to raise his remaining arguments before the
district court, they are waived. Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th
Cir. 2000). We deny his requests for judicial notice as moot.
AFFIRMED.
3