NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

GARY D. UNDERHILL,

Plaintiff-Appellant,

 v.

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant-Appellee.

No. 22-36033

D.C. No. 3:22-cv-05192-BAT

MEMORANDUM*

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

FILED

DEC 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* 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.

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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

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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%).

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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

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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).

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AFFIRMED.

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