Linda Garner v. Carolyn Colvin

MEMORANDUM

Appellant Linda M. Garner (“Garner”) appeals from the district court judgment upholding the final administrative decision of the Commissioner of Social Security, finding Garner was not disabled. We affirm.

Garner alleges that according to Social Security Ruling (“SSR”) 13-2P, the administrative law judge (“ALJ”) improperly analyzed whether her drug and alcohol abuse (“DAA”) was a material factor contributing to her disability. SSR 13-2P, 2013 WL 621536 . However, SSR 13-2P has an effective date of March 22, -2013, whereas Garner’s administrative hearing and final agency decision occurred in 2011; we cannot assign error to the ALJ for failing to comply with a regulation that did not exist at the time; In addition, Garner has waived this issue by failing to raise this argument in the district court. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir.2006).

Even if we were to consider the issue in our discretion, see id. at 973 , SSR 132P did not alter, but merely codified and clarified, policies that existed at the time of Garner’s hearing, including the agency’s “longstanding policy that the claimant continues to have the burden of proving disability throughout the DAA…