Wagner

MEMORANDUM *

Michael E. Wagner appeals the district court’s summary judgment order affirming the denial by the Commissioner of the Social Security Administration of Wagner’s request for disability insurance benefits under Title II and supplemental security income benefits under Title XVI of the Social Security Act. The parties are familiar with the facts and procedural history of this case, so we do not repeat them here. Because substantial evidence supports the findings of the Administrative Law Judge (ALJ) and because those findings were not based on legal error, we dismiss in part and affirm in part. See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996).

Although the parties did not raise the issue of jurisdiction, we must raise it sua sponte where jurisdiction is lacking. WMX Techs., Inc. v. Miller, 104 F.3d 1133 , 1135 (9th Cir.1997). To the extent that Wagner raises a constitutional challenge regarding the sufficiency of the ALJ’s listed impairment finding, Wagner did not exhaust this claim with the Commissioner and we lack jurisdiction to consider it. See Avol v. Sec. of Health & Human Servs., 883 F.2d 659, 661 (9th Cir.1989).

The ALJ gave appropriate weight to the…