NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS JERRETT, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 18-36025 

D.C. No. 2:17-cv-01757-JRC 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

J. Richard Creatura, Magistrate Judge, Presiding

Submitted November 6, 2019**

Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,*** District 

Judge.

Douglas Jerrett appeals the judgment of the district court affirming the 

* 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 Gregory A. Presnell, United States District Judge for 

the Middle District of Florida, sitting by designation.

FILED

NOV 15 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Commissioner of Social Security’s denial of his claim for disability benefits under 

Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. 

Reviewing the district court’s order de novo, Dale v. Colvin, 823 F.3d 941, 943 

(9th Cir. 2016), we may overturn the Commissioner’s decision to deny benefits 

only if it is not supported by substantial evidence or is based on legal error, id. We 

affirm.

Jerrett suffers from Meniere’s disease, which involves balance problems, 

hearing loss, and severe episodes of vertigo. He was fired from his job as a press 

operator for reasons unrelated to his Meniere’s disease. After his termination, 

Jerrett filed for and received unemployment benefits. As part of his application for 

unemployment benefits, he truthfully represented to the State of Washington 

unemployment office that he was able to work.

Jerrett’s claim for disability benefits has cycled through three hearings 

before Administrative Law Judges (ALJs) and two district court remands. At his 

first hearing in 2012, ALJ Kimberly Boyce determined that Jerrett’s subjective 

symptom testimony was not credible. At his most recent hearing in 2017, ALJ 

Wayne Araki incorporated ALJ Boyce’s adverse credibility determination. The 

district court applied the law of the case doctrine and held that it could not 

reconsider ALJ Boyce’s 2012 credibility determination.

It was not error for ALJ Araki to incorporate ALJ Boyce’s adverse 
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credibility determination. In 2012, ALJ Boyce offered two specific, clear and 

convincing reasons for discounting Jerrett’s subjective symptom testimony. 

Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015). Namely, Jerrett 

left his job for reasons other than disability and he continued to receive 

unemployment benefits while seeking disability benefits. See Carmickle v. 

Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161–62 (9th Cir. 2008); Bruton v. 

Massanari, 268 F.3d 824, 828 (9th Cir. 2001).

The district court did not abuse its discretion by relying on the law of the 

case when it refused to reconsider ALJ Boyce’s adverse credibility determination. 

There was no change in the controlling law: Social Security Ruling 16-3p is 

consistent with existing regulations and this court’s precedent. See, e.g., Trevizo v. 

Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). And the evidence on remand was 

not substantially different. Much of the evidence cited by Jerrett, including Dr. 

Ronald Hebard’s 2014 letters and the 2014 Video Nystagmography testing, does 

not concern the relevant time period. Dr. Hebard’s 2015 and 2016 letters are too 

vague and speculative to constitute substantially different evidence, and Dr. Sabina 

Scott’s testimony depended upon the credibility of Jerrett’s subjective symptom 

testimony. Finally, applying the law of the case is not a clear error resulting in 

manifest injustice.

AFFIRMED.