NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE BUSSANICH,

Petitioner,

v.
PORTS AMERICA; et al.,

Respondents. No. 18

- 71189

BRB No. 17

- 0477

MEMORANDUM *

On Petition for Review of an Order of the Benefits Review Board
Submitted December 5, 2019 ** San Francisco, California
Before: GOULD and CALLAHAN, Circuit Judges, and BOUGH, *** District Judge.
Steve Bussanich petitions for review of a decision of the Benefits Review
Board (“ Board ”) affirming an Administrative Law Judge’s (“ALJ’s”) decision

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously conc ludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. 

# FILED

DEC 10 2019

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

denying permanent disability benefits under the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. §§ 901

– 50 (“the Act”)

. We have jurisdiction
pursuant to 33 U.S.C. § 921(c). We review questions of law de novo, Peru v.
Sharpshooter Spectrum Venture LLC , 493 F.3d 1058, 1061 (9th Cir. 2007), and we

review decisions by the Board for errors of law and adherence to the substantial
evidence standard, Kalama Servs., Inc. v. Dir., Office of Work ers’ Comp.
Programs , 354 F.3d 1085, 1090 (9th Cir. 2004). We dismiss the petition in part
and deny the petition in part.
Since 2004, Bussanich has lived with a degenerative joint disease in his
neck. In 2013, he suffered a neck injury at work when he wa s hit by a turnbuckle
swinging from a crane. The ALJ awarded temporary disability benefits but denied
permanent benefits, finding that Bussanich did not establish that his injury
permanently aggravated his underlying degenerative condition. The Board

aff irmed.
For the first time on appeal, Bussanich now contends that the ALJ’s decision
should be vacated pursuant to Lucia v. SEC , 138 S. Ct. 2044 (2018), because the
ALJ was not properly appointed under the Appointments Clause of the United

States Constitut ion

. We do not reach this issue. The Department of Labor
regulations expressly require petitioners to raise all issues for appeal before the

B oard . 20 C.F.R. § 802.211(a). Because Bussanich did not raise this argument3

below, he has forfeit ed the issue on appeal. SSA Terminals v. Carrion , 821 F.3d
1168, 1174 (9th Cir. 2016). We do not make an exception here because t here are
no exceptional circumstances that would warrant review of this appeal

. Marathon

Oil Co. v. United States , 807 F.2d 75 9, 76 8 (9th Cir. 198 6 ).

We next address Bussanich’s contention that t he ALJ’s decision is not
supported by substantial evidence. We disagree. The ALJ properly considered
the evidence as a whole and found that Bussanich did not prove by a
preponderance of the evidence that his injury permanently exacerbated his
underlying degenerative condition.

The ALJ also did not err in her evaluation of the medica l opinion testimony.

It was not error for the ALJ to give less weight than was urged by Bussanich to the
causal opinion of Dr. Jon Huseby, Bussanich’s primary care physician. Dr.
Huseby testified that he is not a specialist in neck injuries, and that he would defer
to a specialist in that context.

The ALJ also did not err in her evaluation of Dr. Benduan Yang’s or Dr.
John Burns’ causal opinions. Although Dr. Yang testified that it was “very likely”
that Bussanich’s neck injury aggravated his underlyi ng condition, he also testified
that it was “possible” that Bussanich’s current condition could be the result of the
natural progression of his underlying disease

. Also , Dr. Yang did not testif y as to

whether the aggravation was temporary or permanent

. B y contrast, Dr. Burns4

testified that Bussanich’s injury did not permanently aggravate his underlying
condition, although he too acknowledged uncertainty. Finding both Dr. Yang and

Dr. Burns to be equivocal, the ALJ concluded that Bussanich did not meet hi s burden of proof that his neck injury from the turnbuckle accident permanently
aggravated his underlying condition. This conclusion was supported by substantial

evidence.
Further, t he ALJ did not err in giving less weight to the timeline of
Bussanich’s symptoms and treatment. The ALJ accurately summarized the
medical evidence, and she noted that despite small improvements, Bussanich
continued to experience the same symptoms. It was not error for the ALJ to

conclude that the timeline did not have much bearing on the key question of

whether Bussanich’s current condition was the causal result of the injury or rather
merely the natural progression of his underlying condition.

Finall y, the ALJ was not required to award permanent benefits based on her
factual findings. Although the ALJ found that Bussanich perceived that he was
unable to work, his perception of his ability d oes not mandate an award of benefits

under the Act.

PETITION DISMISSED IN PART AND DENIED IN PART ; ORDER

OF THE BOARD AFFIRMED.