Michael Ayers v. Kinder Morgan, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL AYERS,
Petitioner,
v.
KINDER MORGAN, INC., et al.,
Respondents.
No. 20-70550
BRB Nos. 19-0110
19-0236
MEMORANDUM*
On Petition for Review of an Order
of the Benefits Review Board
Submitted June 7, 2021**
Portland, Oregon
Before: WARDLAW, HURWITZ, Circuit Judges, and BOLTON,*** District
Judge.
Michael Ayers appeals an order of the Benefits Review Board (“BRB”)
affirming a decision of an Administrative Law Judge (“ALJ”)’s denial of his claim
* 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 Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
FILED
JUN 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for a permanent partial disability award under the Longshore and Harbor Workers’
Compensation Act. We have jurisdiction pursuant to 33 U.S.C. § 921(c) and affirm.
1. The BRB correctly determined that the ALJ stated a reason for the
denial that was not “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” i.e., that Ayers failed to carry his burden of establishing an
impairment rating. See Shirrod v. Dir., Off. of Workers’ Comp. Programs, 809 F.3d
1082, 1086 (9th Cir. 2015).
2. Our review confirms that the ALJ’s findings were not “contrary to law,
irrational, or not supported by substantial evidence.” Id. The ALJ’s finding that Dr.
Ballard failed to explain his impairment-rating finding was rational and supported
by the record: Dr. Ballard’s impairment-rating opinion was short, poorly explained,
and contradicted by that of two other doctors. The ALJ correctly found that Ayers
failed to carry his burden of establishing an impairment rating, and correctly denied
an award for permanent partial disability on that basis. See 5 U.S.C. § 556(d); Dir.,
Off. of Workers’ Comp. Programs, Dep’t of Lab. v. Greenwich Collieries, 512 U.S.
267, 281 (1994).
PETITION FOR REVIEW DENIED.

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