JOHNNESHA BROOKINS V. KILOLO KIJAKAZI, No. 21-35596 (9th Cir. 2022)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED SEP 6 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JOHNNESHA BROOKINS Plaintiff-Appellant, U.S. COURT OF APPEALS No. 21-35596 D.C. No. 3:20-cv-01132-BR v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding Submitted September 1, 2022** Seattle, Washington Before: McKEOWN and GOULD, Circuit Judges, and RAKOFF,*** District Judge. Johnnesha Brookins appeals the district court’s order affirming the decision of the Commissioner of the Social Security Administration (“SSA”) to deny her * 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). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1 daughter’s application for Childhood Supplemental Security Income (“SSI”) benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. In June 2017, Brookins filed a protective application for Childhood SSI on behalf of her daughter, who was 14 years old at the time of the hearing. In her application, Brookins claimed that her child has been disabled due to attention deficit hyperactivity disorder, depression, seizures, and other health conditions. The claim was denied by the SSA, initially in November 2017 and on reconsideration in June 2018. After a written request for a hearing, Brookins’s application was evaluated by administrative law judge (“ALJ”) Cynthia D. Rosa. An ALJ assessing an application for Childhood SSI determines whether the child is disabled through a three-step sequential evaluation. See 20 C.F.R. § 416.924a. In her decision, the ALJ found that Brookins’s daughter met steps one and two of the evaluation but rejected her claim because she did not satisfy step three. The ALJ concluded, after reviewing the relevant evidence, that her daughter did not “have an impairment or combination of impairments that functionally equals the severity of the list[ed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1].” To functionally equal the listings, the claimant’s impairment or combination of impairments must cause a “marked” limitation in two of the domains of functioning listed in 20 C.F.R. § 416.926a(b)(1) or an “extreme” limitation in a 2 single domain. See 20 C.F.R. § 416.926a(d). The ALJ found that Brookins’s child possessed a “[m]arked [l]imitation” in only one domain and therefore was “not disabled under § 1614(a)(3)(C) of the Social Security Act.” The District Court for the District of Oregon affirmed the SSA’s decision. Brookins pressed only one argument during the district court proceeding, that “the ALJ erred when she improperly failed to consider the opinion of Julien Coudra,” a behavior specialist and non-medical professional who had known Brookins’s daughter at school for two years. The court dismissed this claim, reasoning that the ALJ had no obligation to “articulate how [she] consider[s] evidence from nonmedical sources[.]” See 20 C.F.R. § 416.920c(d). We review a district court’s order affirming an ALJ’s denial of SSI benefits de novo. Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (citations omitted). Reversal is appropriate only where “the ALJ’s decision was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard.” Id. The parties agree that Brookins’s two arguments for remand or reversal are raised for the first time on appeal and would thus be forfeited under normal circumstances. See Kaufmann v. Kijakazi, 32 F.4th 843, 847 (9th Cir. 2022). The only issue in dispute is whether Brookins’s arguments can nonetheless be asserted 3 under one of the exceptions to the waiver rule articulated in Greger v. Barnhart, 464 F.3d 968 (9th Cir. 2006). That exception does not apply to either of her arguments. The third Greger exception allows an argument to be raised for the first time on appeal when, first, “the issue presented is purely one of law” and second, either resolution of the issue “does not depend on the factual record developed below” or “the pertinent record has been fully developed.” Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). Moreover, the court “will only excuse a failure to comply with [the waiver] rule when necessary to avoid a manifest injustice.” Id. (citing Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999)). First, Brookins asks the Court to remand the case to determine whether the “ALJ was under a duty to evaluate the paragraph B criteria,” that is, the four broad functional areas that the SSA evaluates when assessing the severity of mental health impairments for certain adults. See 20 C.F.R. § 416.920a(b). Allowing Brookins to present this argument for the first time at this stage would “not [be] necessary to avoid a manifest injustice,” and therefore, Brookins waived this argument by failing to present it in earlier proceedings. Greger, 464 F.3d at 973 (citing Meanel v. Apfel, 172 F.3d 1111, 1111 (9th Cir. 1999)). Brookins also seeks reversal because, she alleges, the ALJ “failed to obtain a ‘case evaluation’ as required by [42 U.S.C. § 1382c(a)(3)(I).]” This argument is also waived on appeal because the issue of whether the ALJ fulfilled this statutory 4 obligation is not “purely one of law.” See 464 F.3d at 973. Determining if the ALJ “made reasonable efforts” to obtain an adequate case evaluation requires extensive factual investigation, including examination of the medical evidence in this case. The Greger exception is therefore inapplicable. AFFIRMED. 5

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