NOT FOR PUBLICATION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 APPEALS2

Commissioner of Social Security’s denial of his claim for disability benefits under

Title II of the Socia l 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 subs tantial 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.

Jer rett’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 determina tion.
It was not error for ALJ Araki to incorporate ALJ Boyce’s adverse3

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. Mu ch 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 substantia lly 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

.