FILED NOT FOR PUBLICATION DEC 7 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY D. UNDERHILL, No. 22-36033
Plaintiff-Appellant, D.C. No. 3:22-cv-05192-BAT
v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Brian Tsuchida, Magistrate Judge, Presiding
Submitted December 5, 2023** Seattle, Washington
Before: N.R. SMITH, SANCHEZ, and MENDOZA, Circuit Judges.
Gary Underhill appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Underhill’s application for disability
insurance benefits under the Social Security Act (SSA). We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 28 U.S.C. § 1291. “We review a district court’s judgment de novo and set aside a
denial of benefits only if it is not supported by substantial evidence or is based on
legal error.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (internal
quotation marks omitted). We affirm.
1. Based on this court’s decision in a prior appeal, Underhill v. Berryhill,
685 F. App’x 522 (9th Cir. 2017), the law of the case doctrine applies, see Stacy v.
Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (“The law of the case doctrine generally
prohibits a court from considering an issue that has already been decided by that
same court or a higher court in the same case.”). In the prior appeal, we reversed
the Administrative Law Judge’s (ALJ) denial of benefits, because the ALJ failed to
“give persuasive, specific, and valid reasons” for discounting the Department of
Veterans Affairs (VA) disability rating and the ALJ “fail[ed] to consider the
medical opinion of Dr. Rezvani.” Underhill, 685 F. App’x at 522–23 (cleaned up).
Underhill raised several arguments in his prior appeal relating to the ALJ’s
findings at step two, the ALJ’s assessment of Plaintiff’s testimony, and the ALJ’s
discounting of certain medical opinions written by Dr. Suffis; Ezatolah Rezvani,
M.D.; Dana Tell, ARNP; and Betty Bennett, ARNP. However, we rejected
Underhill’s these arguments as “unpersuasive.” Id. at 523.
2 Thus, absent a showing that the doctrine should not be applied, we will not
revisit those arguments. See Stacy, 825 F.3d at 567 (outlining that the exceptions to
the law of the case doctrine are “when the evidence on remand is substantially
different, when the controlling law has changed, or when applying the doctrine
would be unjust”). Underhill does not argue that any of these exceptions apply but
instead asserts that the doctrine is inapplicable, because our prior decision was
dicta. We disagree. We explicitly rejected Underhill’s other challenges to the
ALJ’s decision. See United States v. Lummi Nation, 763 F.3d 1180, 1187 (9th Cir.
2014) (“The law of the case doctrine applies only when the issue was decided
explicitly or by necessary implication in the previous disposition.” (internal
quotation marks omitted)). Even though the resolution of the issues was not
dispositive, our rejection of Underhill’s challenges was not dicta. See United States
v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (per curiam) (en banc) (explaining
that when courts “confront cases raising multiple issues that could be dispositive,”
and they elect to resolve those issues “in order to avoid repetition of errors on
remand or provide guidance for future cases,” those resolutions are not dicta).
Notably, we specifically elected to limit the issues that the ALJ had to reconsider
following remand. See id. Although we remanded the case on an open record, that
allowance did not reopen the entirety of the case but allowed Underhill to present
3 additional evidence in support of his claimed disabilities. Accordingly, because
Underhill has not presented any other exceptions to applying the law of case
doctrine, we will not revisit Underhill’s arguments related to the ALJ’s step two
analysis; the ALJ’s assessment of the medical opinions of Dr. Suffis, and nurse
practitioners Tell and Bennett; and Underhill’s symptom testimony.
2. The ALJ provided “persuasive, specific, valid reasons” for
discounting the VA disability rating. See McCartey v. Massanari, 298 F.3d 1072,
1076 (9th Cir. 2002). The ALJ reasonably gave little weight to the VA’s 100%
disability rating,1 because it was not consistent with the treatment notes from the
VA during the relevant period, and the VA disability rating was not based on
medical evidence after 2003. The ALJ found that the treatment notes did not reflect
any objective worsening of Underhill’s back pain and imaging studies revealed
mild degeneration of the spine without nerve root compromise or disc herniation.
Similarly, the ALJ found that the treatment notes did not reflect ongoing shoulder,
knee, hip, or ankle problems during the period of disability. The ALJ also noted
that, although Underhill had a history of asthma/bronchitis from smoking, most of
1 The VA determined that Underhill was disabled based on the following conditions: degenerative joint disease of the lumbar spine (20%); left shoulder impingement syndrome (10%); right hip bursitis (10%); left hip bursitis (10%); right ankle tendonitis (10%); left knee chondromalacia (10%); right knee chondromalacia (10%); asthmatic bronchitis (10%); and tinnitus (10%). 4 the medical records lacked any record of symptoms. Finally, the ALJ found that,
even assuming Underhill suffered from tinnitus, it was not disabling. These
findings are supported by the record and undermine the VA disability rating. See
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009) (holding
that “[t]he ALJ was justified in rejecting the VA’s disability rating on the basis she
had evidence the VA did not, which undermined the evidence the VA did have”).
3. The ALJ provided “specific and legitimate reasons supported by
substantial evidence in the record” for discounting Dr. Finnerty-Ludwig’s medical
opinion. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation
marks omitted). The ALJ found that Dr. Finnerty-Ludwig’s opinion was contrary
to the opinions of Dr. Suffis and Dr. Stadius, the treatment notes, the imaging
studies, and the conservative treatment received by Underhill. The ALJ also noted
that Dr. Finnerty-Ludwig did not begin treating Underhill until after the date of last
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION DEC 7 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY D. UNDERHILL, No. 22-36033
Plaintiff-Appellant, D.C. No. 3:22-cv-05192-BAT
v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Brian Tsuchida, Magistrate Judge, Presiding
Submitted December 5, 2023** Seattle, Washington
Before: N.R. SMITH, SANCHEZ, and MENDOZA, Circuit Judges.
Gary Underhill appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Underhill’s application for disability
insurance benefits under the Social Security Act (SSA). We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 28 U.S.C. § 1291. “We review a district court’s judgment de novo and set aside a
denial of benefits only if it is not supported by substantial evidence or is based on
legal error.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (internal
quotation marks omitted). We affirm.
1. Based on this court’s decision in a prior appeal, Underhill v. Berryhill,
685 F. App’x 522 (9th Cir. 2017), the law of the case doctrine applies, see Stacy v.
Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (“The law of the case doctrine generally
prohibits a court from considering an issue that has already been decided by that
same court or a higher court in the same case.”). In the prior appeal, we reversed
the Administrative Law Judge’s (ALJ) denial of benefits, because the ALJ failed to
“give persuasive, specific, and valid reasons” for discounting the Department of
Veterans Affairs (VA) disability rating and the ALJ “fail[ed] to consider the
medical opinion of Dr. Rezvani.” Underhill, 685 F. App’x at 522–23 (cleaned up).
Underhill raised several arguments in his prior appeal relating to the ALJ’s
findings at step two, the ALJ’s assessment of Plaintiff’s testimony, and the ALJ’s
discounting of certain medical opinions written by Dr. Suffis; Ezatolah Rezvani,
M.D.; Dana Tell, ARNP; and Betty Bennett, ARNP. However, we rejected
Underhill’s these arguments as “unpersuasive.” Id. at 523.
2 Thus, absent a showing that the doctrine should not be applied, we will not
revisit those arguments. See Stacy, 825 F.3d at 567 (outlining that the exceptions to
the law of the case doctrine are “when the evidence on remand is substantially
different, when the controlling law has changed, or when applying the doctrine
would be unjust”). Underhill does not argue that any of these exceptions apply but
instead asserts that the doctrine is inapplicable, because our prior decision was
dicta. We disagree. We explicitly rejected Underhill’s other challenges to the
ALJ’s decision. See United States v. Lummi Nation, 763 F.3d 1180, 1187 (9th Cir.
2014) (“The law of the case doctrine applies only when the issue was decided
explicitly or by necessary implication in the previous disposition.” (internal
quotation marks omitted)). Even though the resolution of the issues was not
dispositive, our rejection of Underhill’s challenges was not dicta. See United States
v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (per curiam) (en banc) (explaining
that when courts “confront cases raising multiple issues that could be dispositive,”
and they elect to resolve those issues “in order to avoid repetition of errors on
remand or provide guidance for future cases,” those resolutions are not dicta).
Notably, we specifically elected to limit the issues that the ALJ had to reconsider
following remand. See id. Although we remanded the case on an open record, that
allowance did not reopen the entirety of the case but allowed Underhill to present
3 additional evidence in support of his claimed disabilities. Accordingly, because
Underhill has not presented any other exceptions to applying the law of case
doctrine, we will not revisit Underhill’s arguments related to the ALJ’s step two
analysis; the ALJ’s assessment of the medical opinions of Dr. Suffis, and nurse
practitioners Tell and Bennett; and Underhill’s symptom testimony.
2. The ALJ provided “persuasive, specific, valid reasons” for
discounting the VA disability rating. See McCartey v. Massanari, 298 F.3d 1072,
1076 (9th Cir. 2002). The ALJ reasonably gave little weight to the VA’s 100%
disability rating,1 because it was not consistent with the treatment notes from the
VA during the relevant period, and the VA disability rating was not based on
medical evidence after 2003. The ALJ found that the treatment notes did not reflect
any objective worsening of Underhill’s back pain and imaging studies revealed
mild degeneration of the spine without nerve root compromise or disc herniation.
Similarly, the ALJ found that the treatment notes did not reflect ongoing shoulder,
knee, hip, or ankle problems during the period of disability. The ALJ also noted
that, although Underhill had a history of asthma/bronchitis from smoking, most of
1 The VA determined that Underhill was disabled based on the following conditions: degenerative joint disease of the lumbar spine (20%); left shoulder impingement syndrome (10%); right hip bursitis (10%); left hip bursitis (10%); right ankle tendonitis (10%); left knee chondromalacia (10%); right knee chondromalacia (10%); asthmatic bronchitis (10%); and tinnitus (10%). 4 the medical records lacked any record of symptoms. Finally, the ALJ found that,
even assuming Underhill suffered from tinnitus, it was not disabling. These
findings are supported by the record and undermine the VA disability rating. See
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009) (holding
that “[t]he ALJ was justified in rejecting the VA’s disability rating on the basis she
had evidence the VA did not, which undermined the evidence the VA did have”).
3. The ALJ provided “specific and legitimate reasons supported by
substantial evidence in the record” for discounting Dr. Finnerty-Ludwig’s medical
opinion. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation
marks omitted). The ALJ found that Dr. Finnerty-Ludwig’s opinion was contrary
to the opinions of Dr. Suffis and Dr. Stadius, the treatment notes, the imaging
studies, and the conservative treatment received by Underhill. The ALJ also noted
that Dr. Finnerty-Ludwig did not begin treating Underhill until after the date of last
insured, and her medical opinion did not reveal that she had reviewed all of the
relevant medical records during the period of disability. Finally, the ALJ concluded
that Dr. Finnerty-Ludwig relied upon Underhill’s subjective complaints of pain,
which the ALJ reasonably rejected.
4. The ALJ provided “clear and convincing reasons” for giving little
weight to Dr. Rezvani’s evaluation. See Ryan v. Comm’r of Soc. Sec., 528 F.3d
5 1194, 1198 (9th Cir. 2008). The ALJ correctly noted that Dr. Rezvani did not
provide a medical opinion outlining Underhill’s impairments and limitations. See
20 C.F.R. § 404.1527(a)(1). Nevertheless, even if Dr. Rezvani had provided a
medical opinion, the ALJ reasonably found that Dr. Rezvani’s opinion was
contrary to the imaging studies, treatment notes, and conservative treatment.
Furthermore, Dr. Rezvani had relied upon Underhill’s subjective complaints,
which the ALJ found not credible, and Dr. Rezvani had not reviewed Underhill’s
normal stress test.
5. The ALJ did not err in his step five evaluation. Underhill’s assertions
that the ALJ erred at step 5 merely restate previous arguments and therefore fail for
the same reasons discussed above.2 See Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1175–76 (9th Cir. 2008). Substantial evidence supports the ALJ’s residual
functional capacity assessment; thus, the ALJ’s hypothetical propounded to the
vocational expert properly included “those impairments that [were] supported by
substantial evidence in the record.” See Osenbrock v. Apfel, 240 F.3d 1157, 1165
(9th Cir. 2001).
2 On appeal, Underhill argues that the ALJ did not provide him with a de novo review. However, Underhill did not make this argument before the district court, thus the argument is forfeited. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). 6 AFFIRMED.