                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 25 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RICK L. HAMMOND,                                 No.   14-35479

              Plaintiff-Appellant,               D.C. No. 9:13-cv-00034-DLC

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                       Argued and Submitted April 7, 2017**
                               Seattle, Washington

Before: W. FLETCHER and GOULD, Circuit Judges, and BLOCK,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.


      **
             The Honorable Frederic Block, United States Senior District Judge for
the Eastern District of New York, sitting by designation.
      Rick Hammond appeals a district court’s summary judgment in favor of the

Commissioner of the Social Security Administration (the “Commissioner”)

reviewing an Administrative Law Judge’s (“ALJ”) decision that Hammond was not

disabled. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      In 2007, an ALJ concluded that Hammond was not disabled during the

relevant period. Hammond challenged that decision in federal court, asserting

inter alia that (1) the ALJ improperly weighed the medical record and opinion

evidence, (2) the ALJ erroneously rejected Hammond’s assertions of pain, and (3)

the delay in Hammond’s proceedings implicated the “credit-as-true” doctrine as to

Hammond’s pain testimony and violated his rights to due process. In 2009, the

district court expressly rejected these arguments, but it found that the ALJ’s

decision was based on inconsistent vocational expert (“VE”) testimony. The

district court granted summary judgment in favor of the Commissioner on all of

Hammond’s challenges except for the ALJ’s reliance on the VE testimony, and

remanded Hammond’s case to the Commissioner for the “limited purpose of

clarification of discrepancies in the testimony of vocational experts.” Hammond

did not appeal the district court’s order. In 2011, an ALJ issued a decision again

concluding that Hammond was not disabled. The 2011 ALJ’s decision was



                                          2
essentially identical to the 2007 ALJ’s decision, except for the portion discussing

VE testimony. Hammond now challenges the 2011 ALJ decision.

      1.     In the proceedings before this appeal, the district court correctly

barred Hammond from re-asserting any argument that the district court had

expressly rejected in its 2009 decision. Stated another way, the district court did

not let Hammond relitigate issues previously decided against him. The district

court relied, however, on the wrong doctrine. The district court rested its decision

on the doctrine of issue preclusion, agreeing with the Commissioner’s contention

that Hammond’s arguments were barred under res judicata.

      Because the 2009 district court’s decision did not amount to a final

adjudication of the rights of the parties in this case, however, and because the

district court’s 2011 decision amounts to a continuation of the “same litigation,”

the more applicable doctrine is law of the case. See United States v. Park Place

Assocs., Ltd., 563 F.3d 907, 925 n.11 (9th Cir. 2009) (explaining that law of the

case, not issue preclusion, is appropriate because the decision with preclusive

effect did not amount to the final adjudication of the rights of the parties); see also

Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (“[T]he law of the case doctrine

. . . appl[ies] in the social security context.”). Under that doctrine, “a court is

ordinarily precluded from reexamining an issue previously decided by the same


                                            3
court.” Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002) (quoting

Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988)).

      Hammond did not appeal the district court’s 2009 decision. As a result, that

court’s previous rejection of his arguments have preclusive effect under law of the

case. We therefore affirm the district court’s preclusion finding, on the alternative

ground that law of the case prevents Hammond from challenging any ALJ finding

the district court affirmed in 2009. See Evans v. Chater, 110 F.3d 1480, 1481 (9th

Cir. 1997) (“We may affirm on any ground finding support in the record, even if

the district court relied on the wrong grounds or wrong reasoning.” (internal

quotation marks omitted)).

      We reject Hammond’s contention that the law of the case doctrine should

not apply because he was misled by the government. The Commissioner did not

mislead Hammond into declining an appeal of the district court’s 2009 decision.

In its remand order, the Appeals Council made clear that the 2009 district court

remand (1) was limited to resolving conflicting VE testimony, and (2) was issued

pursuant to the fourth sentence of 42 U.S.C. § 405(g), which constitutes a “final,

appealable judgment even though that judgment may be accompanied by a remand

order.” Sullivan v. Finkelstein, 496 U.S. 617, 629 (1990). Nothing in the Appeals




                                          4
Council’s order suggested that Hammond could not, or should not, appeal the

district court’s rejection of his other arguments.

      We also reject Hammond’s argument that law of the case should not apply

here because the evidence presented to the ALJ in 2011 was “substantially

different” from that before the 2007 ALJ. Old Person, 312 F.3d at 1039. The non-

VE evidence before the ALJ in 2011 was identical to the evidence before the 2007

ALJ except for a statement given by physical therapist Richard DonTigny in 2010.

The opinions DonTigny sets forth in that statement are cumulative of his other

reports that were presented to the 2007 ALJ.

      Finally, contrary to Hammond’s contention, the Commissioner’s regulations

do not require the district court to reconsider its previous decisions. None of the

regulations Hammond cites require—or even support—that result.

      2.     With respect to Hammond’s arguments that were not previously

addressed by the district court in 2009, the district court here did not err in granting

summary judgment in the Commissioner’s favor. We review the district court’s

decision de novo, and ask whether the ALJ’s decision is supported by substantial

evidence. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.

2009). The ALJ properly gave little weight to DonTigny’s 2010 statement because

(1) that statement was given fifteen years after the relevant period, and (2)


                                           5
DonTigny is not an acceptable medical source. We also reject Hammond’s

challenge to the hypotheticals given by the ALJ to the VE, because that argument

is derivative of Hammond’s previous challenges to the 2007 ALJ’s residual

functional capacity (“RFC”) determination. Because law of the case bars

Hammond from challenging that RFC determination, he cannot assert that the

ALJ’s use of the RFC in questioning the VE was error.

      AFFIRMED.




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