                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 14 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


EDDIE MORALES,                                   No. 11-56003

              Plaintiff - Appellant,             D.C. No. 5:10-cv-00013-AGR

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                        for the Central District of California
                 Alicia G. Rosenberg, Magistrate Judge, Presiding

                           Submitted January 10, 2013**
                              Pasadena, California

Before: McKEOWN and M. SMITH, Circuit Judges, and BELL, District 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).
        ***
            The Honorable Robert Holmes Bell, U.S. District Court for the
Western District of Michigan, sitting by designation.
      Eddie Hernandez Morales appeals the district court’s order affirming the

administrative law judge’s (ALJ) denial of his request for a continuance. The ALJ

proceeded with a video hearing despite Morales’ absence because Morales’

attorney was present, and the ALJ deemed Morales a non-essential witness. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The ALJ did not err in denying Morales’ request for a continuance. As an

initial matter, Morales failed to provide timely notice of his request to reschedule

the hearing. See 20 C.F.R. § 416.1436(d) (agency must be notified about any

request to reschedule the hearing at the “earliest possible opportunity before the

time set for the hearing”).

      Additionally, the ALJ’s denial was proper pursuant to § 416.1436(f) and

§ 416.1450(a), because the ALJ considered the fact that Morales’ counsel was

present at the hearing on Morales’ behalf, and that Morales’ frequent incarcerations

made rescheduling likely to result in further delays. See § 416.1436(f) (“In

determining whether good cause exists . . . the [ALJ] will consider . . . the impact

of the proposed change on the efficient administration of the hearing process.

Factors affecting the impact of the change include . . .delays which might occur in

rescheduling your hearing”); see also § 416.1450(a) (“[a] party may also make his

or her appearance by means of a designated representative”). The ALJ did not err


                                          2
by deeming Morales a non-essential witness because the administrative record

contained statements from Morales concerning his claimed disability, and Morales

has not shown that his testimony at a continued hearing was necessary.

      Finally, Morales asserts that we have jurisdiction to hear his due process

claim. This claim has been waived, however, because Morales failed to raise it

before the district court, and failed to articulate it in his opening brief. See, e.g., In

re Rains, 428 F.3d 893, 902 (9th Cir. 2005); Hibbs v. Dep’t of Human Res., 273

F.3d 844, 873 n.34 (9th Cir. 2001).

      AFFIRMED.




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