source: Caselaw Access Project

author: NGUYEN, Circuit Judge:

license: Public Domain

text:
    Kimberley A. GARDNER, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.
    No. 14-35164
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 3, 2016, Portland, Oregon
    Filed May 9, 2017

      Alan Stuart Graf (argued), Alan Stuart Graf PC, Floyd, Virginia, for Plaintiff-Appellant.
    Gerald Hill (argued), Assistant Regional Counsel; David Morado, Regional Chief Counsel, Seattle Region X; Office of the General Counsel, Social Security Administration, Seattle, Washington; Ronald K. Silver, Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; United States Attorney’s Office, Seattle, Washington; for Defendant-Appellee.
    Before: RICHARD R. CLIFTON, MARY H. MURGUIA, and JACQUELINE H. NGUYEN, Circuit Judges.
   OPINION

NGUYEN, Circuit Judge:

Kimberley Gardner appeals the district court’s denial of her application for attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). Wé reverse and remand.

After losing her claim for social security disability benefits before the Administrative Law Judge (“ALJ”), Gardner presented new evidence—a. final report by her treating doctor, Dr. Rory Richardson—to the Appeals Council. In light of this new evidence in the administrative record before the Appeals Council, the district court remanded for further consideration. The Commissioner did not appeal this decision. But the district court denied Gardner’s request for attorney’s fees, concluding that the Commissioner was substantially justified in arguing that the new evidence did not underrnine the ALJ’s denial of benefits. Implicit in the Commissioner’s litigation position, however, was an assumption that the ALJ on remand either would reject or give little weight to the treating doctor’s opinion. There is simply no support for this assumption. The ALJ had not previously considered the merits of Dr. Richardson’s opinion and, if credited, that opinion would undoubtedly bolster Gardner’s claim that she is disabled. On this record, the Commissioner was not substantially justified in arguing otherwise.

I.

Gardner applied for disability insurance benefits and supplemental security income based on her adult attention deficit hyperactivity disorder (“ADHD”) and anxiety. The Commissioner denied her claims initially and upon reconsideration.

At the next level of review, the ALJ considered evidence including (1) Gardner’s testimony regarding her symptoms and inability to work; (2) the interim opinion of then-examining physician Rory Richardson that Gardner had depressive disorder with concomitant obsessive-compulsive disorder and ADHD that was “likely to prevent her from being able to maintain attention span, complete tasks, and function in a gainful employment setting” despite medications and treatment; (3) the opinion of examining physician James Bryan that Gardner exaggerated her symptoms and suffered from no condition that would significantly impede her em-ployability; and (4) the opinion of nonex-amining psychological consultant Paul Rethinger that Gardner’s mental impairments limit her to work involving simple, unrushed tasks and requiring little social interaction, but that Gardner’s limitations did not render her disabled.

The ALJ, performing the Social Security Administration’s usual five-step evaluation process, concluded that Gardner was not disabled. He found at steps two and three that she had severe impairments of ADHD, somatoform disorder, borderline personality features, and chondromalacia patella, but that these conditions did not meet or equal a listed impairment. The ALJ found at steps four and five that Gardner was able to perform both her past relevant work as a personal attendant and other jobs that exist in the national economy such as retail/wholesale marker and garment sorter.

In reaching these findings, the ALJ found Gardner “credible to the extent she suffers from some type of impairment” but found that her “statements concerning the intensity, persistence^] and limiting effects of these symptoms [were] not credible.” He found that her “treatment records ... demonstrate these symptoms are well maintained when [she] takes her medications as directed by her treatment providers.” The ALJ gave “little weight” to Dr. Richardson’s interim report, explaining that “it is only an interim report and [Dr. Richardson has] not completed a full assessment, indicating a degree of speculation in reaching his conclusions.” The ALJ found Dr. Bryan’s assessment “persuasive” and gave it “significant weight.” The ALJ assigned Dr. Rethinger’s opinion “great weight” because he concluded that it was generally consistent with the record.

Gardner sought review of the ALJ’s decision by the Appeals Council. When subsequent reports by now-treating physician Dr. Richardson (collectively, the “final report”) became available after he had treated her on several occasions, Gardner submitted them to the Appeals Council for consideration. As before, Dr. Richardson concluded that “[d]espite medications and treatment, she continues to have impairment of function which is likely to prevent her from being able to maintain attention span, complete tasks, and function in a gainful employment setting.” This time, however, Dr. Richardson did not qualify his opinion as “interim.” He also opined that Gardner “is plagued by Obsessive Compulsive patterns which severely delay her ability to leave the house and frequently [is] unable to do so without the assistance of her partner.” The Appeals Council included Dr. Richardson’s final report in the administrative record but denied review.

Gardner then filed this action in the district court. She argued that the case should be remanded to the ALJ for an award of benefits because substantial evidence supported her disability in light of Dr. Richardson’s final report. The Commissioner argued that even with this additional evidence in the record, the ALJ’s decision remained supported by substantial evidence and should be affirmed.

In findings and recommendations adopted in whole by the district court, the magistrate judge opined that the ALJ properly rejected Dr. Richardson’s opinion based on the record as it stood at the time of the ALJ’s decision, ie., the interim report. The magistrate judge reasoned that Dr; Richardson was at the time of the interim report only an examining physician and the ALJ provided a specific and legitimate reason for rejecting his opinion—its preliminary nature—-that was supported by the record.

The magistrate judge concluded that the Commissioner’s decision should be reversed, however, because “further administrative proceedings are generally appropriate if the ALJ has not had the opportunity to consider significant additional evidence.” Pointing to Dr. Richardson’s opinion in the final report “that [Gardner’s] impairments would likely prevent her from functioning in a competitive employment setting,” the magistrate judge had “little doubt that a finding of disability would be required if [Dr. Richardson’s] opinion were fully credited.”

The district court entered judgment remanding the case to the ALJ to address Dr. Richardson’s final report as Gardner’s treating physician. The Commissioner did not appeal the decision. Gardner moved for attorney’s fees pursuant to EAJA, which the Commissioner opposed. The magistrate judge recommended awarding $6,713.06 in fees. The district court rejected this recommendation and denied EAJA fees, finding that the Commissioner’s litigation position was substantially justified. Gardner appeals this ruling.

II.

The district court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. See Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). We review the district court’s order denying EAJA fees for abuse of discretion. Id.

EAJA provides that “a court shall award to a prevailing party other than the United States fees and other expenses ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The government has the burden of showing that its position was substantially justified. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (citing Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001)).

“Substantial justification means ‘justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable person.’ ” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). “Put differently, the government’s position must have a ‘reasonable basis both in law and fact.’ ” Id. (quoting Pierce, 487 U.S. at 565, 108 S.Ct. 2541). The “position of the United States” includes both “the position taken by the United States in the civil action” as well as the agency’s action or inaction “upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D).

III.

The ALJ gave “specific and legitimate reasons supported by substantial evidence,” for rejecting Dr. Richardson’s original opinion as an examining physician. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). As the district court observed, the interim nature of Dr. Richardson’s opinion was a legitimate reason for the ALJ to discredit it. But the district court recognized that this observation was ultimately irrelevant to its analysis, because it had to determine whether the ALJ’s finding of nondisability was supported by substantial evidence in the entire record— including any new evidence in the administrative record that the Appeals Council considered—not just the evidence before the ALJ. Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).

The Commissioner’s position before the district court was that Dr. Bryan’s opinion and other record evidence that the ALJ considered provided substantial evidence that Gardner was not disabled and that Dr. Richardson’s final report as a treating physician “does not render the ALJ’s decision unsupported by substantial evidence.” The Commissioner has not identified the right question, however. In determining whether a party is eligible for fees under EAJA, the district court must determine whether the government’s position regarding the specific issue on which the district court based its remand was “substantially justified”—not whether the ALJ would ultimately deny disability benefits. See Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998) (stating that, after Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), there was “a logical shift in focus within the circuit ... from considering only the ultimate issue of disability to considering the justification of the government’s position at the discrete stage in question”); see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (“Under the Act, attorneys’ fees are to be awarded to a party winning a ... remand unless the Commissioner shows that his position with respect to the issue on which the district court based its remand was ‘substantially justified.’ ” (quoting Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995))).

Here, the issue that was before the district court on the original merits appeal of the ALJ’s denial of benefits was not whether there was other evidence that could support a denial of benefits to Gardner, or whether the Commissioner’s denial of benefits might ultimately be sustained. It was whether the actual decision that was made by the ALJ could be affirmed at that time by the district court in light of the new evidence in the record. As we explain below, it should have been plain that it could not have been affirmed, because the ALJ’s decision failed to provide a reason that was still viable for giving the opinion of Dr. Richardson little weight. Dr. Richardson’s final report, if credited, would have undermined the ALJ’s original finding that Gardner was not disabled.

Implicit in the Commissioner’s argument is an assumption that the ALJ would not fully credit Dr. Richardson’s final report. The district court did not, in fact, adopt that assumption to affirm the denial of benefits. Instead, the district court properly remanded the merits case back to the agency, so that the ALJ could decide in the first instance what impact Dr. Richardson’s final report should have.

By later concluding, in denying the fee application, that the Commissioner’s position had been substantially justified, however, the district court appeared to accept the Commissioner’s mischaracterization of the relevant legal question. Even if the Commissioner might have had a legitimate basis for opposing Gardner’s claim, she did not have a basis to oppose remand and to argue that the district court should -affirm the existing ALJ opinion. The district court, by applying the wrong legal standard to evaluate the Commissioner’s litigation position, abused its discretion. See United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

Once Dr. Richardson’s opinion was “final,” it could no longer be given little weight by the ALJ on the ground that it was merely “interim.” Indeed, under the Ninth Circuit’s “treating physician” rule, the ALJ was required to give the opinion of a treating physician like Dr. Richardson its “greatest weight.” Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). The ALJ therefore could have rejected Dr. Richardson’s opinion only by providing “specific and legitimate reasons ... supported by substantial evidence” in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). But apart from the interim nature of Dr. Richardson’s opinion, the ALJ gave no other “specific and legitimate” reason for disregarding it. Id. The rejection of Dr. Richardson’s opinion solely on that basis could not stand once Dr. Richardson’s final report became part of the record.

As a general rule, where the “critical portions” of a treating physician’s discredited opinion were presented for the first time to the Appeals Council, “[t]he appropriate remedy ... is to remand th[e] case to the ALJ” to consider the additional evidence. Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000). That is what the district court did here, and, as we have explained, that is the only result it could properly have reached as the case was presented to it at that point in time. Dr. Richardson’s final report as a treating physician was critical because the ALJ discredited the original report solely due to its preliminary nature, and the final report, if credited, would undermine the ALJ’s initial decision. Remand was a foregone conclusion, so the Commissioner’s opposition to remand was therefore unreasonable.

The Commissioner contends that Har-man is distinguishable because the ALJ there erred—by rejecting without explanation a treating physician’s opinion, see id. at 1174—whereas the ALJ here did not. Harman did not turn on the ALJ’s error. The issue was whether the ALJ’s failure to consider relevant evidence obligated the district court “simply to credit the opinion as true” and remand for immediate payment of benefits or whether the district court correctly entered an order remanding for further development of the administrative record. Id. at 1178. We concluded that remand for further proceedings, as opposed to remand for an immediate award of benefits, was the appropriate course of action based on “the present state of the record,” not the ALJ’s error. Id. at 1180 (stating that we could not conclusively determine from the record as a whole that the claimant was, in fact, disabled within the meaning of the Social Security Act).

The Commissioner cites several unpublished decisions that she asserts “serve as objective indicia that [she] was substantially justified in interpreting Brewes” to not require remand “even though the claimants submitted new evidence to the Appeals Council in support of their claims.” These cases do not support the proposition that remand is optional so long as there is some evidence in the record before the ALJ to support the ALJ’s decision. And indeed, this is not the standard that has been applied by our court. Rather, we have affirmed district court denials of remand notwithstanding the existence of new evidence only when there would be substantial evidence supporting the ALJ’s denial of disability benefits even if the new evidence were credited and interpreted as argued by the claimant. See Wilder v. Comm’r of Soc. Sec. Admin., 545 Fed. Appx. 638, 640 (9th Cir. 2013) (finding new medical opinion “does not merit remand” because it was based on “[objectively verifiable results ... [that] belie [the] suggestion that [the claimant] has a serious ‘impairment ...’” and “subjective reporting” by claimant whom “the ALJ found . ’.. not credible”); Boyd v. Colvin, 524 Fed.Appx. 334, 336 (9th Cir. 2013) (finding immaterial new evidence that “does not cover the period in question”); Coleman v. Colvin, 524 Fed.Appx. 325, 326 (9th Cir. 2013) (“The [new evidence] does not establish any medically determinable mental impairment because it is not an acceptable medical source.”); Denham v. Astrue, 494 Fed. Appx. 813, 815-16 (9th Cir. 2012) (examining “both the evidence before the ALJ and the additional evidence submitted only to the Appeals Council” and finding claimant “did not present medical evidence indicating functional limitations more severe than the RFC found by the ALJ”).

Here, there is no basis to assume that on remand the ALJ would discredit the new evidence rather than rely on it to reach a different conclusion. The only reason given by the ALJ for discrediting the interim report was that Dr. Richardson had “not completed a full assessment.” Had the ALJ considered the final report, which confirmed the interim report’s conclusions, the ALJ may well have credited Dr. Richardson’s assessment over Dr. Bryan’s or Dr. Rethinger’s. By the time Dr. Richardson issued his final report, he had treated Gardner several times. In contrast, Dr. Bryan assessed Gardner based on a single examination and Dr. Rethinger never examined Gardner. In general, “the opinions of [nonexamining physicians and] examining non-treating physicians are afforded less weight than those, of treating physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(1)-(2)).

We reverse the district court’s decision to deny EAJA fees and remand to the district court to determine the appropriate amount of fees to award.

REVERSED and REMANDED.

      . The ALJ performs a "sequential evaluation process” which ends when the ALJ finds that the claimant is or is not disabled. 20 C.F.R. § 416.920(a)(4). At the first step, a claimant "doing substantial gainful [work] activity” is not disabled. Id. § 416.920(a)(4)(i). At the second step, a claimant is not disabled unless she has a "medically determinable physical or mental impairment” or combination of impairments that is severe and either lasts at least a year or results in death. Id. § 416.920(a)(4)(h). At the third step, a claimant is disabled if the severity of her impairments meets or equals one of various impairments listed by the Commissioner, 20 C.F.R. pt. 404, subpt. P, app. 1. Id. § 416.920(a)(4)(iii). At the fourth step, a claimant is not disabled if her residual functional capacity (“RFC”) allows her to perform her past relevant work. Id. § 416.920(a)(4)(iv). At the fifth and final step, a claimant is disabled if she cannot make an adjustment to other work that “exists in significant numbers in the national economy,” id. § 416.960(c)(2), given her RFC, age, education, and work experience, id. § 416.920(a)(4)(v).

      . Nor could it have adopted such an assumption, which would contravene our holding in Brewes by ignoring the new evidence.

      . If the ALJ does not give specific and legitimate reasons for rejecting a treating physician's assessment, the district court has two options. It can reverse and remand for an award of benefits where "(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence ...; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (footnote omitted) (citations omitted). Alternatively, the district court can "remand on an open record for further proceedings ‘when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.’ " Burrell, 775 F.3d at 1141 (quoting Garrison, 759 F.3d at 1021).


author: CLIFTON, Circuit Judge:

text:
    Kim Dana DECKER, Plaintiff-Appellant v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee
    No. 14-35373
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 3, 2016 Portland, Oregon
    Filed May 9, 2017

      Jeffrey H. Baird (argued), Dellert Baird Law Office, Seattle, Washington; Alan Stuart Graf, Alan Stuart Graf PC, Floyd, Virginia; for Plaintiff-Appellant.
    Jeffrey Eric Staples (argued) and Nicole Jabaily, Assistant Regional Counsel; David Morado, Regional Chief Counsel, Seattle Region X; Office of the General Counsel, Social Security Administration, Seattle, Washington; Adrian Lee Brown, Assistant United States Attorney, United States Attorney’s Office, Seattle, Washington; for Defendant-Appellee.
    Before: RICHARD R. CLIFTON, MARY H. MURGUIA, and JACQUELINE H. NGUYEN, Circuit Judges.
   OPINION

CLIFTON, Circuit Judge:

Kim Dana Decker appeals the district court’s denial of her application for attorney fees. In earlier proceedings in the district court, Decker successfully challenged the Commissioner’s denial of her application for disability benefits and obtained a remand of her claim to the agency for further consideration. The district court denied her application pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), for reimbursement of the attorney fees she incurred in litigating her case, however, because it determined that the Commissioner’s litigation position was substantially justified. That conclusion precludes a fee award under the EAJA. Id. § 2412(d)(1)(A).

This is one of two cases before this panel presenting the same question arising out of similar procedural histories. In each case an Administrative Law Judge (ALJ) denied benefits to a claimant, the claimant sought review by the Social Security Appeals Council and submitted new evidence in support of the claim, the Appeals Council declined to review the denial of benefits but incorporated the new evidence into the administrative record, the claimant filed an action in district court to challenge the denial, and the district court subsequently remanded the case, over the Commissioner’s objection, to the ALJ for further proceedings in light of the new evidence. Each of the two claimants at that point sought an award, of fees under the EAJA. The district court denied the request for fees in both cases.

In our opinion in the other case, Gardner v. Berryhill, 856 F.3d 652, No. 14-35164, 2017 WL 1843742 (9th Cir. May 9, 2017), filed concurrently with this opinion, we concluded that the Commissioner’s position was not substantially justified because our precedent clearly required remand of the merits claim to the ALJ for further consideration. Even though the Commissioner’s opposition to Gardner’s disability claim might, in the end, be justified, the opposition before the district court to remand for further proceedings was not substantially justified because remand was “a foregone conclusion.” Id. at 12. As a result, we reversed the denial of fees under the EAJA and remanded to the district court for determination of the appropriate amount of fees.

In contrast, in this case we conclude that the district court did not abuse its discretion in determining that the Commissioner’s position was substantially justified because the Commissioner’s opposition to remand of the claim on the merits was reasonable, even though it turned out to be unsuccessful. Accordingly, we affirm the district court’s denial of Decker’s application for attorney fees.

I. Background

Decker applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, alleging that her ability to work was limited by a variety of ailments, including arthritis. An ALJ determined that Decker had the residual functional capacity to perform light work with certain specifications. The ALJ also concluded that there were jobs existing in significant numbers in the national economy that were available to a person of Decker’s age, education, and experience and that Decker had the capacity to perform. The ALJ therefore concluded that she was not disabled and denied her application for benefits.

Decker then requested that the Appeals Council review the ALJ’s decision. Decker supplied the Appeals Council with the results of blood tests that were not available at the time the ALJ issued his decision. The new evidence, presented in the form of two pages of a print-out from a medical laboratory, listed the results of several different tests. The report identified some results as “abnormal” as compared to a stated “reference range,” including that Decker’s rheumatoid factor was 73 IU/ml, as compared to a reference range of 0-15 IU/ml, her “Sed Rate, Westergren” was 76 mm/hr, as compared to a reference range of 0-25 mm/hr, her “RDW” was 14.5%, as compared to a reference range of 11.5-14.2%, and her “PLT CT” was 406,-000/mm3, as compared to a reference range of 150,000-400,000/mm3. Decker did not supply any doctor’s opinion or other evidence interpreting these raw results. Decker’s medical record suggested that she had previously had at different times both “normal” and “abnormal” results in similar tests. The Appeals Council incorporated the new test results into the record but nonetheless denied review, and the ALJ’s decision became the Commissioner’s final decision.

Decker proceeded to file a complaint in the district court seeking review of the Commissioner’s decision and arguing that the new blood test results suggested that she suffered from rheumatoid arthritis. The magistrate judge issued Findings and Recommendations (F & R) concluding that, in light of the new results, the Commissioner’s decision was not supported by substantial evidence. The F & R explained:

Without knowing [Decker’s doctor’s] interpretation of these results, the Court is essentially being ... asked to rule that substantial evidence supports the ALJ’s disability determination, even though, the [new] laboratory results could conceivably suggest the onset of a far greater degree of impairment than that which had previously been contemplated. Certainly there is at least a possibility that [Decker’s doctor] could interpret these results in a way that warrants a departure from the ALJ’s decision. For the Court to say otherwise would be particularly misguided given its lack of medical expertise.

The district court agreed, adopted the F & R in its entirety, and reversed and remanded for further proceedings. The Commissioner did not appeal that decision to this court.

Decker then filed an application for fees pursuant to the EAJA. The magistrate judge issued a new F & R concluding that the Commissioner’s position was not substantially justified and recommending that the application for fees be granted in part and denied in part. Neither party objected to the F & R.

The district court disagreed with the recommendation by the magistrate judge, stating that it was unclear under this court’s decision in Brewes v. Commissioner of Social Security Administration, 6821 F.3d 1157 (9th Cir. 2012), whether the new evidence considered by the Appeals Council in this case required remand. In light of the evidence in the record supporting the ALJ’s decision to deny benefits to Decker, the district court concluded that the Commissioner was substantially justified in arguing that the new evidence did not warrant remand. The district court therefore denied Decker’s application for attorney fees. Decker filed a timely notice of appeal.

II. Discussion

We review a denial of an EAJA application for attorney fees for an abuse of discretion. Meier v. Colvin, 727 F.3d 867, 869 (9th Cir. 2013). This policy supports the “view that a ‘request for attorney’s fees should not result in a second major litigation.’ ” Pierce v. Underwood, 487 U.S. 552, 563, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “A district court abuses its discretion when it fails to apply the correct legal rule or its application of the correct legal rule is illogical, implausible or without support in inferences that may be drawn from the facts in the record.” Meier, 727 F.3d at 869-70.

As a preliminary matter, Decker contends that, because no party objected to the magistrate judge’s F & R regarding her EAJA application, the district court abused its discretion in reviewing the F & R. This argument is without merit. A district court’s authority to review a magistrate judge’s F & R is not conditioned on a party’s making an objection. Under 28 U.S.C. § .636(b)(1), a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Although a district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,” id., nothing in the statute precludes the district court from reviewing other findings or recommendations de novo if it chooses to do so, Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (“[W]hile [28 U.S.C. § 636] does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.”).

Moving to the primary issue, the EAJA provides, subject to exceptions not relevant here:

[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). “Fees and other expenses” include “reasonable attorney fees.” Id. § 2412(d)(2)(A). When the Commissioner seeks to avoid paying attorney fees for a prevailing party in a Social Security case, it is the Commissioner’s burden to “show[ ] that her position with respect to the issue on which the court based its remand was ‘substantially justified.’ ” Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995); see also Meier, 727 F.3d at 870. “Substantially justified” means “justified to a degree that could satisfy a reasonable person.” Pierce, 487 U.S. at 565, 108 S.Ct. 2541. The government’s position is not substantially justified simply because our precedents have not squarely foreclosed the position. See id. at 566, 108 S.Ct. 2541 (“To be ‘substantially justified’ means, of course, more than merely undeserving of sanctions for frivolousness .... ”). Rather, “the government’s position must have a ‘reasonable basis both in law and fact.’ ” Meier, 727 F.3d at 870 (quoting Pierce, 487 U.S. at 565, 108 S.Ct. 2541).

In Campbell v. Astrue, 736 F.3d 867 (9th Cir. 2013), we explained:

While ⅝ this circuit has been clear that when an agency’s decision is unsupported by substantial evidence it is a strong indication that the position of the United States is not substantially justified, this circuit has never stated that every time this court reverses and remands the ALJ’s decision for lack of substantial evidence the claimant should be awarded attorney’s fees.

Id. at 869. We are mindful of the fact that Decker succeeded on the merits, and we consider that success against our observation that “it ‘will be only a decidedly unusual case in which there is substantial justification under the EAJA even though the agency’s decision was reversed as lacking in ... substantial ... evidence in the record.’” Id. at 868 (quoting Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)). Nevertheless, success on the merits is not dispositive of an EAJA application, id. at 869, and we must assess the justification of the Commissioner’s position based on its reasonableness before the district court made its decision on the merits.

The issue presented to the district court by Decker’s appeal of the denial of benefits was the question of whether the new evidence Decker submitted to the Appeals Council required remand to the ALJ for consideration of how the new data might impact Decker’s disability determination. The district court determined that remand was appropriate based on our opinion in Brewes v. Commissioner of Social Security Administration, 682 F.3d 1157 (9th Cir. 2012), regarding the treatment of additional evidence not before the ALJ but added to the record when the case was presented to the Appeals Council. We held “that when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner’s final decision for substantial evidence.” Id. at 1163.

In Brewes the ALJ had determined that the claimant was not disabled because she could perform jobs existing in significant numbers in the national economy. Id. at 1163. The vocational expert who testified before the ALJ acknowledged, however, “that if a person with Brewes’[s] characteristics were to miss two or more days of work per month, ... she would be unemployable.” Id. After the ALJ’s decision was issued, Brewes submitted new evidence to the Appeals Council: a letter in which her treating psychologist and her mental health nurse practitioner “opined that ‘it is likely Brewes would miss quite a few days a month from even a simple job.’ ” Id. (brackets omitted). Because Brewes’s new evidence directly undermined the basis of the ALJ’s analysis, we concluded that the Commissioner’s decision was “not supported by substantial evidence.” Id. at 1164.

Gardner, the companion to this case, is similar to Brewes. The ALJ in Gardner reviewed an examining physician’s interim report that, if fully credited, would have required a finding of disability. The ALJ discredited the report purely because it was an interim, not final, report. Gardner submitted the physician’s final report to the Appeals Council, which declined review. The physician’s final report stated a conclusion similar to that of the interim report, - supporting Gardner’s disability claim. Gardner, at 7. Just as in Brewes, the new evidence directly undermined the basis for the ALJ’s decision: since the report had been finalized, the physician’s opinion could no longer be disregarded on the grounds that it was only interim. With nothing left to support the ALJ’s rejection of the physician’s opinion, remand was “a foregone conclusion.” Id. at 12. Because the Commissioner lacked substantial justification to oppose the remand, Gardner was entitled to fees pursuant to the EAJA.

It was not so obvious, though, whether Decker’s case required remand. Decker’s new evidence consisted of two pages of blood test results, without further explanation. A medical laboratory report that identifies certain test results as “abnormal” when compared to stated reference ranges is not very meaningful by itself. A report of one or more “abnormal” test results might be evidence that supports a finding of long-term disability, but it does not on its face compel it. Decker failed to submit evidence interpreting the added test results that would have made them more meaningful to the district court and to us. She also failed to explain why her new results meaningfully differed from her previous results, some of which were also abnormal. Noting that the new test results were not accompanied by anything stating how they were interpreted by Decker’s physician, the district court explained the decision to remand the merits case to the agency by observing that there was “a possibility” that the results could be interpreted by Decker’s doctor to support a result different from that reached by the ALJ. That result was not inevitable, however.

Judges are not physicians, though too many lawyers who practice in the Social Security disability benefits field seem to think otherwise. The district court was not required to interpret for itself test results in the way that Decker wanted. Decker’s new evidence, though sufficient in the end to persuade the district court to remand the case, did not make that the only reasonable result. We cannot say, in that circumstance, that the district court abused its discretion in reaching the conclusion that the Commissioner’s position in opposing remand was substantially justified. •

III. Conclusion

Because the district court did not abuse its discretion in concluding that the Commissioner’s position was substantially justified, we affirm the district court’s denial of Decker’s application for attorney fees under the EAJA.

AFFIRMED.

      . While not apparent from the report itself, Decker explains in her briefing on appeal that "Sed Rate, Westergren” refers to sedimentation rate (Westergren method), "RDW” refers to red cell distribution width, and "PLT CT” refers to platelet count.


author: GOULD, Circuit Judge:

text:
    RECYCLE FOR CHANGE, Plaintiff-Appellant, v. CITY OF OAKLAND, a California Municipal Corporation, Defendant-Appellee.
    No. 16-15295
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted September 13, 2016, San Francisco, California
    Filed May 9, 2017

      Daniel P. Dalton (argued) and Lawrence J. Opalewski, Jr., Dalton & Tomich PLC, Detroit, Michigan, for Plaintiff-Appellant.
    Selia M. Warren (argued), Deputy City Attorney; Otis McGee, Jr., Chief Assistant City Attorney; Barbara J. Parker, City Attorney; Office of the City Attorney, Oakland, California; for Defendant-Appellee.
    Geoffrey M. Pipoly, Williams Montgomery & John Ltd., Chicago, Illinois; Stephen J. van Stempvoort, Miller Johnson, Grand Rapids, Michigan; for Amicus Curiae Planet Aid, Inc.
    Derek P. Cole, Cota Cole LLP, Rose-ville, California, for Amicus Curiae League of California Cities.
    Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges, and JOHN R. TUNHEIM, Chief District Judge.

       The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation.

   OPINION

GOULD, Circuit Judge:

Recycle for Change (“RFC”), a California non-profit corporation, challenges the City of Oakland’s (“Oakland”) ordinance regulating unattended donation collection boxes (“UDCBs”) as inconsistent with the First Amendment. RFC sought a preliminary injunction from the district court, which the court denied. RFC appeals that order. Assuming UDCBs constitute protected speech or expressive conduct—an issue we do not decide—we hold that RFC is unlikely to succeed on the merits of its First Amendment claim because the ordinance is content neutral and survives intermediate scrutiny. We affirm the denial of preliminary injunctive relief.

I

RFC recycles and reuses donated materials for dual purposes: to conserve environmental resources and to raise funds to be donated to various charities. RFC operates UDCBs in Oakland as a method of collecting donated materials from the public. RFC places UDCBs on private property with the property possessor’s permission. The revenue RFC generates from its UDCB operations- is a significant part of its overall income.

On October 20, 2015, Oakland enacted Ordinance No. 13335 C.M.S. (the “Ordinance”). Adding Chapter 5.19 to the Oakland Municipal Code, the Ordinance created a comprehensive licensing scheme governing the operation of UDCBs within city limits. By its terms, the Ordinance applies only to UDCBs, which it defines as “unstaffed drop-off boxes, containers, receptacles, or similar facility that accept textiles, shoes, books and/or other salvageable personal property items to be used by the operator for distribution, resale, or recycling.” Oakland Mun. Code § 5.19.050. With exceptions irrelevant to this case, the Ordinance makes it “unlawful to place, operate, maintain or allow a UDCB on any real property unless the parcel owner/agent and/or operator first obtainfs] an annually renewable UDCB permit from the City.” Id. § 5.19.060(A). To obtain a permit, an operator must, inter alia, pay an application fee that costs about $535, propose a site plan, and obtain at least one million dollars in liability insurance. Id. § 5.19.070. The annual license renewal fee is about $246. The Ordinance sets restrictions on box placement location and size, requires specific periodic maintenance, and prohibits placing a UDCB within one thousand feet of another UDCB. Id. §§ 5.19.120, 5.19.130.

RFC sued Oakland, asserting that the Ordinance violates the Free Speech and Equal Protection Clauses of the United States Constitution and Article 1, Sections 2 and 7 of the California Constitution. RFC filed a motion for a preliminary injunction against enforcement of the Ordinance based on the federal constitutional claims only. The district court denied RFC’s motion after finding that RFC (1) is unlikely to succeed on the merits on its First Amendment claim because the Ordinance is content neutral and survives intermediate scrutiny, (2) is unlikely to succeed on the merits on its Fourteenth Amendment claim because the Ordinance survives rational basis review, and (3) failed to demonstrate likelihood of irreparable harm. RFC appeals the district court’s order with respect to its First Amendment claim only.

II

This court has jurisdiction to review an order refusing a preliminary injunction. 28 U.S.C. § 1292(a)(1). We review the district court’s weighing of the relevant factors for abuse of discretion, but its underlying conclusions of law de novo. See Int’l Franchise Ass’n v. City of Seattle, 803 F.3d 389, 398 (9th Cir. 2015).

“A plaintiff seeking a preliminary injunction must establish that [it] is [1] likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We consider these factors on a sliding scale, such “that a stronger ¿showing of one element may offset a weaker showing of another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). RFC contends that the district court erred by concluding that RFC was unlikely to succeed on the merits of its First Amendment claim and would not suffer irreparable injury absent an injunction. Because we reject RFC’s first argument, we do not reach the second.

Ill

The first step of First Amendment analysis is to determine whether the regulation implicates protected expression. In its briefing, Oakland does not dispute RFC’s contention that UDCBs in some respects constitute expression, and so enjoy a measure of protection under the First Amendment. Because we conclude that RFC is unlikely to succeed on the merits of its claim even if that is so, we assume without deciding that the Ordinance triggers First Amendment analysis.

So assuming, we begin from the. recognition that charitable solicitations are protected speech. See Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). The Ordinance impacts to a degree RFC’s ability to communicate its charitable solicitations message on private property.

Next, we must ask whether the Ordinance is content based or content neutral. If content based, we review it using strict scrutiny. See Reed v. Town of Gilbert, - U.S. -, 135 S.Ct. 2218, 2227, 192 L.Ed.2d 236 (2015). If, however, such a law does not “suppress[ ] expression out of concern for its likely communicative impact,” we ordinarily apply intermediate scrutiny (or, as described below, a version of intermediate scrutiny unique to incidental regulation of expressive conduct). United States v. Swisher, 811 F.3d 299, 314 (9th Cir. 2016) (en banc) (quoting United States v. Eichman, 496 U.S. 310, 317, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990)); see also United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

A

A content-based law is one that “target[s] speech based on its communicative content” or “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 135 S.Ct. at 2226-27. The “crucial first step” in determining whether a law is content based is to “consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Id. at 2227-28 (quoting Sorrell v. IMS Health, Inc., 564 U.S. 552, 566, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011)). We also apply strict scrutiny if the law is facially neutral but “cannot be ‘justified without reference to the content of the regulated speech,’ or [was] adopted by the government ‘because of disagreement with the message [the speech] conveys.’ ” Id. at 2227 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). Here, the Ordinance is content neutral because it does not, on its face, discriminate on the basis of content; can be justified without reference to the content of the regulated speech; and there is no evidence that Oakland adopted the Ordinance because it disagreed with the message conveyed by UDCBs.

RFC argues that the Ordinance is content based because an enforcing officer would have to examine a container’s message and determine whether the container solicits charitable donations to determine whether a receptacle.is subject to the Ordinance’s requirements. We reject this argument for two reasons. First, it is factually incorrect. The Ordinance’s application is not limited to UDCBs soliciting charitable donations. It applies to any unattended structure that accepts personal items “for distribution, resale, or recycling.” Oakland Mun. Code § 5.19.050. It does not matter why the UDCB operator is collecting the personal items, whether it be for charitable purposes or for-profit endeavors. The record notes that one of the largest UDCB operators in Oakland is USAgain, a for-profit company. To enforce the Ordinance, an officer need only determine whether (1) an unattended structure accepts personal items and (2) the items will be distributed, resold, or recycled.

Second, that an officer must inspect a UDCB’s message to determine whether it is subject to the Ordinance does not render the Ordinance per se content based. While at times we have used this “enforcing officer” test to explain why a law is content based, e.g., Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1200 (9th Cir. 2016); S.O.C., Inc. v. Cty. of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998); Foti v. City of Menlo Park, 146 F.3d 629, 686 (9th Cir. 1998), we—and the Supreme Court—have also cautioned that an officer’s inspection of a speaker’s message is not dispositive on the question of content neutrality. See, e.g., Hill v. Colorado, 530 U.S. 703, 721, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (“It is common in the law to examine the content of a communication to determine the speaker’s purpose.... We have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.”); Berger v. City of Seattle, 569 F.3d 1029, 1052 (9th Cir. 2009) (“Our conclusion that the active solicitation ban is content based is supported—but not determined—by the fact that an officer seeking to enforce the active solicitation ban must necessarily examine the content of the message that is conveyed.” (emphasis added) (internal quotation marks omitted)). And this is for good reason. The “officer must read it” test cuts too broadly if used “as a bellwether of content. If applied without common sense, this principle would mean that every sign, except a blank sign, would be content based.” See Reed v. Tom of Gilbert, 587 F.3d 966, 978-79 (9th Cir. 2009), rev’d on other grounds, 135 S.Ct. at 2232 (2015).

We are left with the following question: does a law that requires an enforcing officer to decide whether a UDCB collects personal items for the purpose of distributing, reusing, or recycling those items— regardless of the purposes of such activity—discriminate on the basis of content? Or, stated another way, does the activity of collecting, distributing, reusing, or recycling personal items—or the solicitation of items to further such activity—constitute “communicative content,” Reed, 135 S.Ct. at 2227, against which any hint of discrimination should trigger strict scrutiny? We think not.

The Sixth Circuit’s decision in Planet Aid v. City of St. Johns, 782 F.3d 318 (6th Cir. 2015), is instructive. There, the court determined that the City of St. John’s ordinance banning UDCBs collecting charitable donations was content based not because it required enforcing officers to look just at the message a UDCB itself was expressing, but because it required officers to look for a specific message soliciting charitable donations. The court explained that, because the First Amendment protects speech soliciting charitable donations, see Vill. of Schaumburg, 444 U.S. 620, 100 S.Ct. 826, the message expressed by UDCBs accepting charitable donations constitutes “content.” See Planet Aid, 782 F.3d at 324-26. Because St. John’s ordinance targeted only those bins engaging in a specific kind of protected expression, it was content based. Id. at 328. As the court explained, the St. Johns ordinance “ban[ned] altogether an entire subclass of [bins] ... with an expressive message protected by the First Amendment.” Id. at 329-30. Planet Aid is instructive because it helps give meaning to the term “content” when we ask whether a law discriminates on the basis of content. In Planet Aid, the bins’ message of charitable giving was viewed as.“content” because it is a particular kind of protected speech.

Another helpful example is seen in the Supreme Court’s opinion in Reed, in which the plaintiffs challenged an ordinance distinguishing between “temporary directional signs,” “political signs,” and “ideological signs.” 135 S.Ct. at 2227. The Court explained that such distinctions were based on content because each sign type represented a particular protected message:

The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.

Id.

By contrast, here the Ordinance does not discriminate on the basis of any message—whether by targeting speech written on the boxes or by targeting the substantive content of the boxes’ inherent expressive component. It discriminates on the basis of non-expressive, non-communicative conduct. Although collecting donations to further charitable causes is “content” because it is “intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues,” Schaumburg, 444 U.S. at 632, 100 S.Ct. 826, that is not the Ordinance’s target. Instead, the Ordinance regulates the unattended collection of personal items for distribution, reuse, and recycling, without regard to the charitable or business purpose for doing so. That conduct is neither expressive nor communicative.

In this sense, the Ordinance is more similar to the law in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), which the Supreme Court held to be content neutral. There, cable companies challenged the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act of 1992, which required “cable operators to carry the signals of a specified number of local broadcast television stations.” Id. at 630, 114 S.Ct. 2445. The Court explained that the requirement was content neutral because, despite “interfering] with cable operators’ editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations,” it did not “impose[ ] a restriction, penalty, or burden by reason of the views, programs, or stations the cable operator has selected or will select.” Id. at 644-15, 114 S.Ct. 2445. The same is true here: the purpose of, or message expressed by, RFC’s UDCBs is irrelevant to whether they are subject to the Ordinance’s requirements.

We recognize, as RFC argues, that the Ordinance burdens RFC’s ability to erect UDCBs by, for example, limiting the locations in which it can operate UDCBs and imposing additional costs. And assuming, as we have, that RFC’s charitable UDCBs implicate First Amendment protected expression, the zoning limitations would burden to a degree RFC’s ability to express its protected charitable solicitation message. But those considerations alone do not make the Ordinance content based. Rather, to prove that the Ordinance is a content-based regulation of expressive conduct, RFC would have to show that the law applies to its UDCBs because the bins engage in charitable solicitation. See Swisher, 811 F.3d at 314 (noting a content-based restriction of symbolic speech “suppresses expression out of concern for its likely communicative impact” (quoting Eichman, 496 U.S. at 317, 110 S.Ct. 2404)); cf. Ward, 491 U.S. at 791, 109 S.Ct. 2746 (“A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.”). On its face, the Ordinance does not do so.

In sum, the Ordinance restricts the boxes themselves, as collection devices for discarded material. Although the function of the boxes requires that they contain a message explaining their function, the Ordinance is indifferent with regard to the nature of that explanation, the inducements provided for donations, or the uses to which the donations will be put. The Ordinance is therefore content neutral to the extent it regulates speech or expressive activity at all.

Having concluded that the Ordinance is content neutral on its face, we must also ask whether there is evidence that Oakland passed the Ordinance with an intent to burden RFC’s charitable message. Strict scrutiny is the appropriate level of review if the Ordinance “cannot be justified without reference to” RFC’s charitable message, or if the Ordinance “[was] adopted ... because of disagreement with” RFC’s charitable message. Reed, 135 S.Ct. at 2227 (internal quotation marks omitted) (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746).

During oral argument, RFC argued that the purpose of the Ordinance was to support brick-and-mortar charity organizations, that is, organizations that run manned storefronts. RFC waived this argument because it never raised it in its briefs, other than in a terse one-sentence footnote. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued specifically and distinctly in a party’s opening brief.... [A] bare assertion does not preserve a claim ...”); Harger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009) (argument raised for first time during oral argument will not be considered). But even if we considered the merits of this argument, we would reject it. That Oakland intended to benefit charity organizations that operate in brick-and-mortar stores is not discrimi-hation on the basis of RFC’s message. Rather, it discriminates based on how RFC solicits charitable donations. Because RFC does not demonstrate how the operation of UDCBs, rather than operation of a brick-and-mortar store, is connected with its message of charitable solicitation, this argument does not demonstrate an intent to discriminate on the basis of content. See Leathers v. Medlock, 499 U.S. 439, 449, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991) (holding that a tax imposed on cable television operators but not print media was content neutral because, inter alia, there was no evidence that the speech expressed by the exempt media and non-exempt media “differ [ed] systematically in [their] message”).

The record does not support the contention that Oakland passed the Ordinance with an intent to burden the message expressed by RFC’s UDCBs. The Ordinance can be justified by “other considerations”: the record suggests that the City Council enacted the Ordinance out of concern that UDCBs attract illegal dumping, scavenging, and graffiti, and had been placed in a manner that tended to harm the safety of drivers and pedestrians, and the Ordinance itself states that its purpose is to “promote the health, safety, and/or welfare of the public by providing minimum blight-related performance standards for the operation” of UDCBs, Oakland Mun. Code • § 5.19.010. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Nor does RFC point to any evidence in the record that anyone in the Oakland City Council disagreed with RFC’s message.

Because the Ordinance does not, by its terms, discriminate on the basis of content, and there is no evidence that Oakland enacted the Ordinance with an intent to burden RFC’s message of charitable solicitation or out of any disagreement with that message, the Ordinance is content neutral.

B

Having concluded that the Ordinance is content neutral, we now consider whether it survives the intermediate scrutiny standard outlined in O’Brien. See Wilson v. Lynch, 835 F.3d 1083, 1096 (9th Cir. 2016). “Under O’Brien, ‘a government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ ” Id. (quoting O’Brien, 391 U.S. at 377, 88 S.Ct. 1673). We hold that the Ordinance satisfies this level of scrutiny.

Oakland argues that it enacted the Ordinance to combat blight, illegal dumping, graffiti, and traffic impediments that endanger drivers and pedestrians. See also Oakland Mun. Code § 5.19.010. These efforts are within the constitutional power of the government and constitute a substantial governmental interest. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (“Nor can there be substantial doubt that the twin goals ... [of] traffic safety and the appearance of the city[ ]are substantial governmental goals.”). The regulation of UDCB placement and upkeep plainly serves these stated interests. By their nature, unattended bins invite blight, illegal dumping, and graffiti issues. And, as discussed above, these interests are unrelated to the suppression of the UDCB operators’ speech.

Finally, the means by which the Ordinance pursues Oakland’s goal of combating the negative impacts associated with UDCBs are “narrowly tailored.” In the context of content-neutral laws challenged under the First Amendment, a regulation may be narrowly tailored even though it is “not ... the least restrictive or least intrusive means” of pursuing the substantial governmental interest. Ward, 491 U.S. at 798, 109 S.Ct. 2746. “[T]he requirement of narrow tailoring is satisfied so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation .... [and s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest.” Id. at 799-800, 109 S.Ct. 2746 (internal quotation marks omitted).

The Ordinance combats blight, illegal dumping, and graffiti by requiring a thousand feet of distance between UDCBs operations. As explained in the Interim City Administrator’s report, “clustering of UDCBs can create the appearance of an informal dumping area and attract unintended items such as couches, appliances, and electronics.” The report also explains that such distances requirements are common to prevent secondary effects produced by other kinds of operations that generate waste or are the focus of “undesirable, nuisance-related activities.” The thousand-feet-distance requirement is not substantially broader than necessary to achieve the goal of combating blight, dumping, and graffiti, and without that requirement, those negative secondary effects would be worse. The same is true for the traffic-related dangers. The Ordinance combats traffic-related negative secondary effects by requiring that UDCBs only be placed in particular areas so as to accommodate the truck traffic required for maintenance.

While RFC argues that these location restrictions will significantly decrease their UDCB operations, the Administrator’s report explains, “there are still reasonable opportunities to site new UDCBs in more appropriate locations.” We agree with the district court that reasonable alternative avenues of communication for RFC to express its message of charitable solicitation remain in Oakland. RFC may continue to operate UDCBs pursuant to the Ordinance’s requirements, and it also may solicit charitable donations in ways other than operating an unattended collection box. See Young v. City of Simi Valley, 216 F.3d 807, 817 (9th Cir. 2000). Finally, the evidence does not suggest that the initial or annual licensing fees are designed to do anything other than defray administrative costs. Such fees do not facially violate the First Amendment. See Kaplan v. Cty. of Los Angeles, 894 F.2d 1076, 1081 (9th Cir. 1990); see also Kwong v. Bloomberg, 723 F.3d 160, 165-66 (2d Cir. 2013).

In sum, the Ordinance plainly serves important governmental interests unrelated to the suppression of protected speech. The Ordinance is sufficiently narrowly tailored and leaves alternative avenues of communication for RFC to express its message. The district court did not err in concluding that RFC is unlikely to succeed on the merits of its First Amendment claim.

IV

On appeal, RFC argues that it will suffer irreparable harm on the sole ground that it will experience a “loss of First Amendment freedoms.” See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Because we hold that RFC did not demonstrate that it is likely to succeed on the merits of its First Amendment claim, we need not address RFC’s irreparable harm argument. We note, however, that the argument is derivative of RFC’s assertion that it is likely to succeed on the merits.

V

Assuming the Oakland Ordinance implicates protected speech or expressive conduct, it is not content based and survives intermediate scrutiny. RFC has not shown that it is likely to succeed on the merits of its First Amendment claim.

AFFIRMED.

      . We note that although the content-based/content-neutral distinction has in recent years become largely determinative of the applicable level of scrutiny even as to regulation of fully private speech, the distinction originated in specialized areas of First Amendment analysis. See generally Daniel A. Farber, The First Amendment 23-41 (4th ed. 2014). The Supreme Court has never held that broad, content-neutral censorship of fully private speech would be subject to less than strict scrutiny. Cf. Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (holding that a "ban [on all speech] cannot be justified even [in] a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech”). For present purposes, however, the content-based/content-neutral distinction governs.

      . While the Supreme Court reversed our court in ReecL, the Court held only that the sign regulation was content based on its face because its application depended "entirely on the communicative content of the sign.” 135 S.Ct. at 2227. It did not adopt, or even discuss, the merits of the "officer must read it” test as a proper content-neutrality analysis.

      . The ordinance in Planet Aid did not on its face make any distinction between UDCBs that engage in charitable solicitation and those that do not (such as UDCBs operated by for-profit companies). The ordinance in Planet Aid applied to "outdoor, unattended receptacle[s] designed with a door, slot, or other opening that is intended to accept donated goods or items.” 782 F.3d at 322. The word "donation” need not have an exclusively charitable connotation. See Oxford English Dictionary (defining donation as "[t]he action or faculty of giving or presenting; presentation, bestowal; grant,” “[t]he action or right of bestowing or conferring a benefice; the 'gift,' " and “[t]he action or contract by which a person transfers the ownership of a thing from himself to another”), available at http:// www.oed.com/view/Entry/567422redirected From=donation#eid (last viewed on December 16, 2016). But it is clear from the court's discussion in Planet Aid that it interpreted the ordinance to apply only to receptacles soliciting donations to charitable causes. Id. at 328 ("The ordinance.... bans only those unattended, outdoor receptacles with an expressive message on a particular topic—charitable solicitation and giving." (emphasis added)).

      . We also note that the Planet Aid court missed an important step in its analysis—it did not clarify whether a UDCB collecting charitable donations engages in pure speech or expressive conduct. For purposes of our analysis, we assume certain messages regarding charitable solicitation displayed on a bin constitute protected speech, but the bin itself is, at best—and this assumption is generous— expressive conduct rather than pure speech. See Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir. 1999) (“Non-verbal conduct implicates the First Amendment when it is intended to convey a 'particularized message' and the likelihood is great that the message would be so understood.” (quoting Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)).

      . Again, we assume for the purposes of this decision that the Ordinance affects RFC’s ability to engage in a form of protected expression related to charitable solicitation.


author: SCHROEDER, Circuit Judge: BEA, Circuit Judge,

text:
    Richard Harley GREENWAY, Petitioner-Appellant, v. Charles L. RYAN, Director of Arizona Department of Corrections, Respondent-Appellee.
    No. 14-15309
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 28, 2015
    Deferred January 25, 2016
    Resubmitted March 27, 2017, San Francisco, California
    Filed May 11, 2017

      Robin C. Konrad (argued) and Therese M. Day, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.
    Jeffrey Sparks (argued) and Laura P. Chiasson, Assistant Attorneys General; Jeffrey A. Zick and Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Tucson, Arizona; for Respondent-Appellee.
    Before: MARY M. SCHROEDER, JOHNNIE B. RAWLINSON, and CARLOS T. BEA, Circuit Judges.
   Concurrence by Judge BEA

OPINION

SCHROEDER, Circuit Judge:

Richard Greenway is an Arizona state prisoner. A jury convicted him of the brutal 1988 murders of a mother and her teenage daughter during a burglary in Tucson, Arizona. He was tried and'convicted of burglary, armed robbery, theft by control, arson of an unoccupied structure, as well as two counts of murder in the first degree, and sentenced to death in 1989. Following his appeal and state court post-conviction proceedings, the district court denied his 28 U.S.C. § 2254 petition.

We heard his first federal appeal in 2011. Greenway v. Schriro, 653 F.3d 790 (9th Cir. 2011). Our decision affirmed the district court’s denial of Greenway’s claims of ineffective assistance at sentencing, but remanded for the district court to consider on the merits the claims of ineffective assistance at trial and on direct appeal. Id. at 793. The district court has now done so and has denied them. Greenway seeks review in this appeal.

The district court spent a good deal of time attempting to determine what claims were within the scope of our remand, because Greenway made additional contentions. Although the district court found that many of the claims were not within the scope of the remand, it’ concluded that an intervening Supreme Court decision required consideration of some of the ineffectiveness claims in any event. See Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012). We do not need to consider Greenway’s argument that the district court erred in determining that some claims were outside the scope of our remand, however, since the determination does not affect the scope of the issues before us in this appeal.

The district court granted a certificate of appealability regarding two claims of ineffectiveness. Both relate to trial counsel’s alleged failure to present defenses. Neither has merit.

Greenway claims trial counsel failed adequately to present an overall defense theory. Defense counsel at trial argued that the evidence showed only that Greenway was involved in destroying the stolen property after the murders had occurred. This theory was consistent with the physical evidence. No viable alternative theory appears in the record, and Greenway does not suggest one. Ineffectiveness has not been shown.

The district court also certified the issue of whether trial counsel should have explored the possibility of a mental incapacity defense of impulsivity, as recognized in Arizona, in order to negate premeditation. See State v. Christensen, 129 Ariz. 32, 628 P.2d 580, 583-84 (1981). We conclude the suggested defense would have been counterproductive, as it would have placed Greenway as a principal in the murders, and would likely not have overcome the strong evidence of premeditation in any event.

This court additionally asked for supplemental briefing on Greenway’s claim that trial counsel was ineffective during voir dire in failing to discover that a juror had been the victim of a violent crime that would have disqualified that juror. We conclude that this claim is also without merit. We deny a certificate of appealability as to all other claims.

BACKGROUND

The facts relating to the nature of the crime and the procedural history are set forth fully in our prior opinion. See Greenway, 653 F.3d at 794. We summarize here briefly.

Police found the bodies of Lili Champagne and her daughter, Mindy Peters, in their home; each had been shot twice. Evidence suggested that the two had been killed in the course of a robbery. Following a news bulletin asking for information regarding the victims, Greenway’s sister notified homicide detectives that Greenway knew something about the incident. Detectives picked up Greenway and his co-defendant, Chris Lincoln, for questioning. Lincoln confessed to participating in the killings and implicated Greenway. Green-way and Lincoln were then both arrested and charged with several counts, including murder.

Before trial, Greenway was placed in a cell with Anthony Schmanski. Schmanski, according to his trial testimony, asked Greenway why he was in jail, and Green-way answered, “Well, I just blew two people away” because “they had seen [my] face.” Further investigation revealed Greenway had attempted to sell the victims’ car stereo to Brian Mize, Greenway’s co-worker. According to Mize’s trial testimony, Greenway told Mize that he went to the victims’ house and, after taking “some stuff,” shot the victims. Greenway also told Mize that, after he shot the older lady, “her body rolled over and blood gushed out of her head.” See State v. Greenway, 170 Ariz. 155, 823 P.2d 22, 26 (1991).

There was also evidence that Greenway knew the victims. He had been to a party with Mindy in late 1987. Greenway met Lili shortly thereafter when Greenway went to their house to return Mindy’s wallet.

Prior to trial, Greenway’s trial counsel had submitted proposed voir dire questions to the court, including: “Have any of you ever been the victim of a crime or testified in a criminal case?” and “Has anyone on the panel ever been the victim of a sex related crime?” During voir dire, the trial court did not ask these questions as proposed. Instead, the trial court asked: “Have any of you ever been a witness in a criminal case? Ever come to Court and testified in a criminal case?” The court also asked whether any juror had “ever been a witness to a criminal act where the police came out and they took your statement.” Juror Virginia Coker remained silent, indicating negative responses to the questions. The next day, Coker approached the bench and disclosed to the judge that she had called the police regarding a domestic violence incident, but she did not disclose any other occasion when she had been a witness or given a statement to the police. Before the conclusion of voir dire, the court asked the attorneys whether there were any specific questions that they thought the court should ask. Greenway’s counsel did not ask for his questions as originally proposed. Juror Coker was empaneled on Greenway’s jury.

Greenway’s trial lasted only three days, and the jury returned a guilty verdict on all counts the following day. In accordance with Arizona law at the time, the trial judge made the life or death sentencing decision after an aggravation-mitigation hearing. The judge sentenced Greenway to death.

In 1994, five years after trial, Coker signed an affidavit stating that, in addition to the domestic violence incident, she had been the victim of a violent crime—a home invasion and sexual assault—seven years prior to serving on Greenway’s jury. She also said that she had testified against her attacker at his trial.

DISCUSSION

Because Greenway filed his petition for a writ of habeas corpus after April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, we may disturb a state court’s rulings only if they were “contrary to” or “involved an unreasonable application of’ clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). In this case, the state court did not rule on the merits of the claims. See Greenway, 653 F.3d at 800. The district court therefore correctly considered the claims de novo. On appeal, we review de novo the district court’s denial of Greenway’s habeas petition. See Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007).

To prevail on a claim of ineffective assistance of counsel, Greenway must show that counsel’s performance was both inadequate and that the inadequate performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The inquiry under Strickland is “highly deferential,” and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052.

A. Ineffectiveness During Voir Dire

Greenway did not raise an ineffective assistance claim relating to juror Coker in his state court post-conviction proceedings or in his original federal habeas petition. He did raise it before the district court on remand and we requested briefing on the merits in this appeal. Although the claim is unexhausted, we summarily discuss the merits.

The issue we must determine is whether counsel was ineffective during voir dire in not bringing forth the prior history of juror Coker. The answer must be in the negative. Counsel was not clairvoyant and had no reason to believe the prospective juror was withholding information. It is true that counsel requested the court to ask questions that, if the juror had decided to answer, might have put everyone on notice that the prospective juror had been a victim of a violent crime in her home. The judge did not ask the questions in precisely the requested form, however, and the juror answered the questions as posed by the judge. She revealed a domestic violence incident, but not her own sexual assault during a home invasion. Counsel had no reason to believe that there was anything more to disclose beyond the domestic violence incident she had described, nor are we persuaded that had Coker been asked the question as requested, she would have disclosed the sexual assault, and thereby been disqualified.

Greenway’s claim is therefore far too speculative for a court to conclude that counsel was ineffective during voir dire. Accordingly, after reviewing the requested supplemental briefing from the parties, we find no basis for disturbing the district court’s dismissal of the claim.

B. Ineffectiveness with Respect to the Investigation and Defense Theory

The state trial was brief, with high stakes, and in both state court and this court, Greenway faults counsel for failing to conduct a deeper and broader investigation, to present additional witnesses, and to present a cohesive defense theory. Yet, there is not now, nor has there ever been any suggestion of what that further investigation could have yielded in terms of evidence that would have changed the result of the trial.

The only available witness Greenway now argues should have been called was Schmanski’s landlady who, he contends, would have testified that Schmanski was an untrustworthy drunk. The jury, however, knew that Schmanski was an alcoholic. In closing argument, the prosecutor conceded, “Mr. Schmanski has a drinking problem [and] is an alcoholic.” Defense counsel, in closing argument, emphasized that Schmanski was not only an alcoholic, but also was receiving psychological treatment and wanted to cut a deal. In short, Schmanski’s landlady would have added little to what the jury already knew. Even if the jury had heard from Schmanski’s landlady, that Schmanski was a drunk whose word could not be trusted, there is no reasonable probability of a different result at trial.

There was another potential witness, named Darrin Saige, who could not be located at the time of trial. Greenway now raises the possibility that Saige might have provided testimony to suggest that Green-way had only helped to destroy the evidence and was not at the scene of the murders. The problem is that we have no affidavit from Saige, or anyone else, to that effect.

The only indication in the record that Saige may have had any relevant information is in'the form of notes from an investigator. The notes do not suggest that Saige could have provided material, admissible, exculpatory evidence. The notes indicate that Lincoln told Saige three different versions of the events in this case. In two versions, Lincoln implicated Greenway in the burglary and murders. In one version, Lincoln said that Greenway only helped to dispose of the property. According to Greenway, trial counsel should have called Saige to testify as to this third version of events, which Saige would have asserted was the truthful version. We are asked to assume that the jury would have credited the exculpatory version, rather than the other versions, which inculpated Green-way. There is no basis for such an assumption. Because Saige’s testimony could have been more harmful than helpful, counsel was not ineffective in failing to locate Saige or present his testimony at trial.

In light of the prosecution’s case, Green-way’s counsel was not deficient in his presentation of the defense theory. The prosecutor presented evidence tying Greenway to the crimes: Greenway had tried to sell the stolen stereo equipment to his coworker; Greenway’s fingerprints were on the door of the stolen Porsche and the stock of the murder weapon; and police found the keys to the Porsche in Green-way’s trailer. The prosecutor established that Greenway knew the victims and where they lived, and had been seen driving the victims’ Porsche. The prosecutor also presented two witnesses, Schmanski and Mize, who testified that Greenway had admitted to committing the murders.

At trial, Greenway’s counsel argued that the evidence did not put Greenway at the scene of the murders. During opening statements, defense counsel emphasized to the jury that Greenway’s fingerprint simply showed “that at some point in time Mr. Greenway may have handled that rifle.” In closing argument, defense counsel emphasized that the evidence showed only that Greenway participated in disposing of the stolen property. Counsel further pointed out during closing that although Green-way’s fingerprints were found on the stock of the gun, they were not found on the trigger. In addition, Greenway’s fingerprints were not found at the murder scene. Defense counsel also attempted to discredit the testimony of the prosecution’s witnesses by attacking their credibility. The theory of defense that counsel presented at trial was reasonable, given the evidence implicating Greenway in the crimes. Greenway’s ineffective assistance of counsel claim with respect to the theory of defense therefore lacks merit.

C. Ineffectiveness in Failing to Pursue a Christensen Defense

Greenway argues defense counsel should have mounted a defense that Greenway was incapable of premeditation. In Arizona, a defendant charged with first-degree murder may seek to negate premeditation by presenting evidence of his impulsive and reflexive, rather than reflective, nature, from which the jury may infer that the defendant acted in accordance with his nature at the time of the crime. Christensen, 628 P.2d at 583 (“The establishment of the character trait of acting without reflection tends to establish that appellant acted impulsively. From such a fact, the jury could have concluded that he did not premeditate the homicide.”). We recognized the defense in Vickers v. Ricketts, 798 F.2d 369 (9th Cir. 1986), where we said, “The Arizona Supreme Court has held that the tendency to act on impulse is probative of an absence of premeditation.” Id. at 373.

In this ease, however, a Christensen defense would have been counterproductive. Had counsel argued that Greenway acted impulsively, counsel would have placed Greenway at the scene of the crimes and negated the defense that he had not participated in the murders, a defense consistent with the physical evidence.

Moreover, evidence of an impulsive character trait is relevant only to rebut the showing of premeditation required for first-degree murder. A Christensen defense therefore would have had no effect on the charge of felony murder, which does not require premeditation, and is also punishable by death in Arizona. See Tison v. Arizona, 481 U.S. 137, 154, 107 S.Ct., 1676, 95 L.Ed.2d 127 (1987); State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865, 868 (1982).

A Christensen defense had little likelihood of success in any event, since the evidence of premeditation was substantial. The evidence showed planning and reflection. The murder weapon required manual reloading of each bullet. The two victims were each shot twice. One was shot in the forehead through a pillow. There was no sign of a struggle at the crime scene. The shell casings were removed from the home. Greenway’s co-worker testified that Green-way admitted he wore surgical gloves during the crimes. A Christensen defense would not likely have overcome such strong evidence of premeditation. For all these reasons, Greenway’s claim that counsel was ineffective in failing to pursue a Christensen defense lacks merit.

CONCLUSION

The district court did not err in denying Greenway’s claims of ineffective assistance of counsel.

The judgment of the district court is AFFIRMED.

BEA, Circuit Judge,

concurring:

I concur in full in Judge Sehroeder’s opinion. Nevertheless, I write separately because I would find that much of Green-way’s ineffective assistance of counsel claim' based on trial counsel’s failure to challenge and remove a biased juror was not fairly—or at all—presented in any state court proceeding, and is therefore procedurally barred by Greenway’s failure to exhaust his state court remedies. Furthermore, that waiver is not excused under the very narrow exception recognized in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 1320, 182 L.Ed.2d 272 (2012) (holding that a defendant’s failure to raise a claim of ineffectiveness as to trial counsel in state court post-conviction proceedings may be excused where the defendant’s counsel in the “initial-review collateral proceedings” was himself ineffective). Our review, as a federal habeas court, is therefore limited to those arguments that were properly presented to the Arizona Superi- or Court.

As detailed in the Court’s opinion, Greenway was sentenced to death after a jury found him guilty of murder, burglary, armed robbery, theft by control, and arson. See State v. Greenway, 170 Ariz. 155, 823 P.2d 22, 26 (1991). On direct appeal, Greenway challenged the judge’s imposition of the death penalty and alleged a number of counts of ineffective assistance of counsel (“IAC”) during the sentencing proceedings. These claims were all rejected on their merits. Id. at 40.

Greenway later discovered that one of the members of his jury, Virginia Coker (“Juror Coker”), had been the victim of a home break-in and sexual assault by knife point in the early 1980s. See State v. Hauss, 142 Ariz. 159, 160, 160-61, 166, 688 P.2d 1051 (Ct. App. 1984). In fact, Juror Coker had testified against her assailant at his trial. Juror Coker failed to disclose this information during voir dire in Greenway’s case, despite clear questions from the trial court judge as to whether any venire member had ever “been a witness” or “come to Court and testified in a criminal case?” In 1994, approximately five years after Greenway’s trial, Juror Coker signed an affidavit admitting that she had failed to disclose her status as the victim of a violent crime during voir dire (the “Affidavit”).

In August 1992, Greenway commenced collateral proceedings for post-conviction relief in Arizona Superior Court. These proceedings continued into 1996, yet at no point did Greenway raise a claim of IAC based on Coker’s falsities in his petition for post-conviction relief. Sometime after filing his initial petition, Greenway acquired new counsel, Carla Ryan (“Ryan”). In August 1996, Ryan filed an Addendum to Greenway’s petition for post-conviction relief (the “Addendum”) to state the factual bases for Greenway’s new claims of IAC at trial and on direct appeal. The Addendum lists, largely in bullet-point form, the dozens of ways in which trial and direct appeal counsel were allegedly ineffective. Both before and at the time she filed the Addendum, Ryan had access to Coker’s 1994 Affidavit, yet Ryan failed to raise any IAC claim related to Juror Coker or juror bias in the Addendum.

The Arizona Superior Court summarily dismissed all the claims in Greenway’s Addendum as procedurally barred under Arizona Rules of Criminal Procedure, Rule 32.2(a)(3). Greenway petitioned for federal habeas relief, and the district court held that the state court’s dismissal of Green-way’s petition for post-conviction relief pursuant to Rule 32.2(a)(3) constituted an independent and adequate state ground sufficient to support a finding of procedural default. We reversed. We reasoned, first, that Rule 32.2(a)(3) applied only when there had been a “prior post-conviction proceeding.” Greenway v. Schriro, 653 F.3d 790, 800 (9th Cir. 2011) (emphasis added). In Greenway’s case, there had been “no such prior post-conviction proceeding” because Greenway had been “trying to amend his first petition” for post-conviction relief when the state court judge summarily dismissed his claims. Id. Because Rule 32.2(a)(3) did not even apply, it was not an “independent and adequate” state court ground barring our review. Id. Second, we reasoned that, under Arizona Rules of Criminal Procedure, Rule 32.6(d), a defendant may amend a post-conviction petition for relief for “good cause.” Yet, notwithstanding this provision, the state court judge had failed to consider whether good cause existed in Greenway’s case. Id-at 799. Thus, Rule 32.6(d) also did not bar our review of Greenway’s petition. Id. (citing to our prior decision in Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009), where we held that “Rule 32.6(d) was not an adequate bar to federal review because the rule was not clear, well-established, nor consistently applied in Arizona”). Having concluded that the claims in Greenway’s Addendum were not barred, we remanded this case to the district court with instructions to review de novo the merits of those claims. Thus, our prior mandate limited the district court’s review (and, correspondingly, our own review on appeal) to those claims stated in the Addendum.

Our review is likewise limited by the exhaustion-of-state-remedies doctrine, See, e.g., Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (A petitioner is barred from raising for the first time in federal habeas proceedings arguments that do not arise out of the “same [factual] incident” as the claims presented to the state court or which “fundamentally alter the legal claim already considered by the state courts.” (internal quotation marks omitted)). In Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc), for example, we held that even a related, but more specific claim might be barred in federal collateral proceedings if it significantly strengthened the evidentiary posture of the petitioner’s state-court claim and thus fundamentally altered it. Id. at 1318. In Dickens, the petitioner had made only general allegations in the state court proceedings that “sentencing counsel did not effectively evaluate whether Dickens ‘suffered] from any medical or mental impairment.’ ” Id. at 1319. Then, for the first time on federal habeas review, Dickens offered evidence of “specific conditions” (Fetal Alcohol Syndrome and organic brain damage) in support of his IAC claim. Id. We concluded that Dicken’s “newly enhanced Strickland claim [was] procedurally barred” because the new factual predicate “substantially improved” the evidentiary posture of Dickens’ IAC claim. Id.

So here, Greenway’s current claim that trial counsel was ineffective in failing to take certain steps to prevent a biased juror (Juror Coker) from being empaneled was never “fairly presented” to the state court. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (“We emphasize that the federal claim must be fairly presented to the state courts.”). Greenway’s state-court Addendum contains no mention of Juror Coker, of juror bias, or of counsel’s failure to ask specific questions during voir dire. In fact, the only statement in the Addendum related to Greenway’s current juror bias claim is that trial counsel’s failure to use a juror questionnaire was “questionable.” But the Addendum states no basis as to why that failure was “questionable,” much less that such failure rose to the level of ineffective assistance of counsel. Additionally, Green-way offers no excuse for his failure to present a juror bias claim in state court. Indeed, Greenway admits that he was aware of Juror Coker’s December 1994 Affidavit nearly two years before Ryan filed the August 1996 Addendum. Still, he did not argue that the missing questionnaire rendered counsel’s performance ineffective because it could have asked whether any venire member had been the victim of a violent or sex-related crime. Under Dickens, I would find that Greenway’s cursory criticism in his Addendum of the method of voir dire does not preserve Greenway’s factually distinct and far more specific claim that a biased juror was seated because trial counsel failed to ask the right substantive questions.

Nor may we overlook this default under Martinez, which permits a federal habeas court to excuse a defendant’s failure to exhaust state court remedies in initial post-conviction review proceedings if counsel in those collateral proceedings was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 1318, 182 L.Ed.2d 272 (2012). Here, Martinez would apply only if Greenway can demonstrate that Ryan, his initial post-conviction review counsel, acted ineffectively in failing to raise an IAC claim as to trial counsel on the juror bias issue. Greenway did not even attempt to make this showing in his 99-page opening brief, which contained only the most cursory reference to Martinez. Indeed, Green-way specifically argued the opposite: that “Ryan fairly presented Greenway’s IAC claim and gave the state court an opportunity to decide the federal claim.” See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005) (“[A]n issue is waived when the appellant does not specifically and distinctly argue the issue in his or her opening brief.”).

But even assuming Greenway has not waived his Martinez argument by failing to make it, I would find that Martinez’ “narrow exception” does not apply here. To prevail on a claim of IAC, Greenway would have to show that Ryan’s performance (1) fell below objective standards of reasonableness “outside the wide range of professionally competent assistance,” and (2) prejudiced him by creating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding could have been different.” Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Importantly, Greenway is not alleging a direct violation of his due process or Sixth Amendment right to an impartial jury. Rather, he is alleging that trial counsel’s failure to take certain steps that, arguendo, would have revealed Juror Coker’s bias (thereby preventing a constitutional violation) rendered trial counsel’s representation ineffective. For the reasons described in Judge Schroeder’s opinion, however, this claim is predicated on multiple layers of speculation. A reasonable attorney in Ryan’s position could therefore have concluded that it lacked merit; thus Ryan was not ineffective in failing to raise it. Thus, Martinez does not apply to excuse Greenway’s failure to exhaust his state-court remedies.

In sum, I would find that Greenway has waived any claim of juror bias based on trial counsel’s failure to ask certain questions that allegedly would have prevented Juror Coker from being seated on Green-way’s jury.

      . Though Ae record is not entirely clear, it appears that it was Greenway’s counsel who discovered this information and obtained the Affidavit from Coker in December 1994, meaning that Greenway had access to, and was aware of, Ae Affidavit as of December 1994. See infra, n.2.

      . We previously summarized the timeline of Greenway's post-conviction proceedings as follows:
      Greenway filed his pro se preliminary petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure ("Rule 32 petition”) in state court in August 1992. Judge Scholl appointed counsel and ordered counsel to file an amended petition by February 1, 1993. Counsel then filed a short, untimely petition raising only one issue of ineffective assistance of counsel at sentencing, and Greenway asked for a change of counsel Aat his attorney did not oppose. No further pleadings or proof were entered by counsel pending the change of counsel ruling. The trial judge, however, in January 1994, summarily denied the post-conviction petition in a minute order, wiA-out ruling on the request for change of counsel. The trial court subsequently granted Greenway's motion to proceed in propria persona and allowed him to file a motion for reconsideration.... [¶]
      The case was reassigned to a different judge in January 1996. Greenway Aen filed the motion with Ae trial court seeking reconsideration of its denial of his post-conviction petition.... [and] leave to amend....”

        Greenway v. Schriro, 653 F.3d 790, 795-96 (9th Cir. 2011).

      . Though the precise timeline is not entirely clear from the record, Greenway admitted in the district court proceedings on remand from our 2011 disposition that he was aware of the Affidavit well before Ryan filed the Addendum. See Brief of Petitioner at 19 & n.24, Greenway v. Ryan, 2013 WL 6196293 (D. Ariz. Nov. 27, 2013) (No. CV-98-25-TUC-RCC), ECF No. 169 ("Juror Coker had been the victim of rape and sexual assault.... This information was discovered during Green-way's post-conviction proceedings when he was represented by the Arizona Capital Representation Project. Greenway's successor counsel, Carla Ryan, who ultimately filed a request to amend his post-conviction petition ... never included this information or a separate juror misconduct claim in the record.”).

      . Rule 32.2(a)(3) .provides, "A defendant shall be precluded from [post-conviction] relief under Ais rule based upon any ground.... [t]hat has been waived at trial, on appeal, or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3).

      . Rule 32.6(d) provides, "After the filing of a post-conviction relief petition, no amendments shall be permitted except by leave of court upon a showing of good cause.” Ariz. R. Crim. P. 32.6(d).