FILED
NOT FOR PUBLICATION
APR 25 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK L. HAMMOND, No. 14-35479
Plaintiff-Appellant, D.C. No. 9:13-cv-00034-DLC
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted April 7, 2017**
Seattle, Washington
Before: W. FLETCHER and GOULD, Circuit Judges, and BLOCK,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, United States Senior District Judge for
the Eastern District of New York, sitting by designation.
Rick Hammond appeals a district court’s summary judgment in favor of the
Commissioner of the Social Security Administration (the “Commissioner”)
reviewing an Administrative Law Judge’s (“ALJ”) decision that Hammond was not
disabled. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In 2007, an ALJ concluded that Hammond was not disabled during the
relevant period. Hammond challenged that decision in federal court, asserting
inter alia that (1) the ALJ improperly weighed the medical record and opinion
evidence, (2) the ALJ erroneously rejected Hammond’s assertions of pain, and (3)
the delay in Hammond’s proceedings implicated the “credit-as-true” doctrine as to
Hammond’s pain testimony and violated his rights to due process. In 2009, the
district court expressly rejected these arguments, but it found that the ALJ’s
decision was based on inconsistent vocational expert (“VE”) testimony. The
district court granted summary judgment in favor of the Commissioner on all of
Hammond’s challenges except for the ALJ’s reliance on the VE testimony, and
remanded Hammond’s case to the Commissioner for the “limited purpose of
clarification of discrepancies in the testimony of vocational experts.” Hammond
did not appeal the district court’s order. In 2011, an ALJ issued a decision again
concluding that Hammond was not disabled. The 2011 ALJ’s decision was
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essentially identical to the 2007 ALJ’s decision, except for the portion discussing
VE testimony. Hammond now challenges the 2011 ALJ decision.
1. In the proceedings before this appeal, the district court correctly
barred Hammond from re-asserting any argument that the district court had
expressly rejected in its 2009 decision. Stated another way, the district court did
not let Hammond relitigate issues previously decided against him. The district
court relied, however, on the wrong doctrine. The district court rested its decision
on the doctrine of issue preclusion, agreeing with the Commissioner’s contention
that Hammond’s arguments were barred under res judicata.
Because the 2009 district court’s decision did not amount to a final
adjudication of the rights of the parties in this case, however, and because the
district court’s 2011 decision amounts to a continuation of the “same litigation,”
the more applicable doctrine is law of the case. See United States v. Park Place
Assocs., Ltd., 563 F.3d 907, 925 n.11 (9th Cir. 2009) (explaining that law of the
case, not issue preclusion, is appropriate because the decision with preclusive
effect did not amount to the final adjudication of the rights of the parties); see also
Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (“[T]he law of the case doctrine
. . . appl[ies] in the social security context.”). Under that doctrine, “a court is
ordinarily precluded from reexamining an issue previously decided by the same
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court.” Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002) (quoting
Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988)).
Hammond did not appeal the district court’s 2009 decision. As a result, that
court’s previous rejection of his arguments have preclusive effect under law of the
case. We therefore affirm the district court’s preclusion finding, on the alternative
ground that law of the case prevents Hammond from challenging any ALJ finding
the district court affirmed in 2009. See Evans v. Chater, 110 F.3d 1480, 1481 (9th
Cir. 1997) (“We may affirm on any ground finding support in the record, even if
the district court relied on the wrong grounds or wrong reasoning.” (internal
quotation marks omitted)).
We reject Hammond’s contention that the law of the case doctrine should
not apply because he was misled by the government. The Commissioner did not
mislead Hammond into declining an appeal of the district court’s 2009 decision.
In its remand order, the Appeals Council made clear that the 2009 district court
remand (1) was limited to resolving conflicting VE testimony, and (2) was issued
pursuant to the fourth sentence of 42 U.S.C. § 405(g), which constitutes a “final,
appealable judgment even though that judgment may be accompanied by a remand
order.” Sullivan v. Finkelstein, 496 U.S. 617, 629 (1990). Nothing in the Appeals
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Council’s order suggested that Hammond could not, or should not, appeal the
district court’s rejection of his other arguments.
We also reject Hammond’s argument that law of the case should not apply
here because the evidence presented to the ALJ in 2011 was “substantially
different” from that before the 2007 ALJ. Old Person, 312 F.3d at 1039. The non-
VE evidence before the ALJ in 2011 was identical to the evidence before the 2007
ALJ except for a statement given by physical therapist Richard DonTigny in 2010.
The opinions DonTigny sets forth in that statement are cumulative of his other
reports that were presented to the 2007 ALJ.
Finally, contrary to Hammond’s contention, the Commissioner’s regulations
do not require the district court to reconsider its previous decisions. None of the
regulations Hammond cites require—or even support—that result.
2. With respect to Hammond’s arguments that were not previously
addressed by the district court in 2009, the district court here did not err in granting
summary judgment in the Commissioner’s favor. We review the district court’s
decision de novo, and ask whether the ALJ’s decision is supported by substantial
evidence. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.
2009). The ALJ properly gave little weight to DonTigny’s 2010 statement because
(1) that statement was given fifteen years after the relevant period, and (2)
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DonTigny is not an acceptable medical source. We also reject Hammond’s
challenge to the hypotheticals given by the ALJ to the VE, because that argument
is derivative of Hammond’s previous challenges to the 2007 ALJ’s residual
functional capacity (“RFC”) determination. Because law of the case bars
Hammond from challenging that RFC determination, he cannot assert that the
ALJ’s use of the RFC in questioning the VE was error.
AFFIRMED.
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