NOT FOR PUBLICATION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 concludes 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 APPEALS
2 

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 Workers’ 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 was 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

affirmed.

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 Constitution. We do not reach this issue. The Department of Labor 

regulations expressly require petitioners to raise all issues for appeal before the 

Board. 20 C.F.R. § 802.211(a). Because Bussanich did not raise this argument 
3 

below, he has forfeited the issue on appeal. SSA Terminals v. Carrion, 821 F.3d 

1168, 1174 (9th Cir. 2016). We do not make an exception here because there are 

no exceptional circumstances that would warrant review of this appeal. Marathon 

Oil Co. v. United States, 807 F.2d 759, 768 (9th Cir. 1986).

We next address Bussanich’s contention that the 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 medical 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 underlying 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 testify as to 

whether the aggravation was temporary or permanent. By contrast, Dr. Burns 
4 

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 his 

burden of proof that his neck injury from the turnbuckle accident permanently 

aggravated his underlying condition. This conclusion was supported by substantial 

evidence.

Further, the 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. 

Finally, 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 does not mandate an award of benefits 

under the Act.

PETITION DISMISSED IN PART AND DENIED IN PART; ORDER 

OF THE BOARD AFFIRMED.