Dorothy J. Nursement v. MICHAEL J. ASTRUE, Commissioner of Social Security

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOROTHY J. NURSEMENT,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
No. 10-56762
D.C. No. 2:10-cv-00269-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jacqueline Chooljian, Magistrate Judge, Presiding
Argued and Submitted April 12, 2012
Pasadena, California
Before: B. FLETCHER, KLEINFELD, and M. SMITH, Circuit Judges.
Dorothy Nursement (“Nursement”) appeals the district court’s judgment
affirming the Commissioner of Social Security’s (“Commissioner”) final decision
denying her application for supplemental security income (“SSI”) benefits.
FILED
APR 25 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Nursement claims that the administrative law judge (“ALJ”) erred when he failed
to give preclusive effect to a finding from the adjudication of her prior application
for benefits. Because new and material evidence supports the ALJ’s finding, we
affirm.
Nursement argues that administrative res judicata applies to the prior finding
of her residual functional capacity (“RFC”) to perform the mental requirements of
work. Nursement contends that the ALJ erred when he omitted a prior finding that
she lacks the capacity to perform any work that requires math or that requires the
ability to read at a second or third grade level. We review de novo the district
court’s judgment upholding the denial of social security benefits, and may set aside
a denial of benefits only if it is based upon legal error or is not supported by
substantial evidence. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172 (9th Cir.
2008); see 42 U.S.C. § 405(g).
The Social Security Act (“SSA”) directs that “[t]he findings and decision of
the Commissioner . . . after a hearing shall be binding upon all individuals who
were parties to such hearing.” 42 U.S.C. § 405(h); see 20 C.F.R. §§ 404.957(c)(1),
416.1457(c)(1) (stating that res judicata and collateral estoppel apply where the
Commissioner has made a previous final decision based “on the same facts and on
the same issue or issues”). For example, prior findings about an applicant’s RFC,

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education, and work experience are entitled to some preclusive effect as long as the
adjudicator does not consider new and material evidence on the issue. Chavez v.
Bowen, 844 F.2d 691, 694 (9th Cir. 1988). Medical evaluations conducted after a
prior adjudication necessarily constitute new and material evidence.
Subbs-Danielson, 539 F.3d at 1172–73.
Nursement claims that administrative res judicata applies to the prior finding
of her mental RFC but not to the prior finding of her physical RFC but points to no
authority that supports her argument. Here, after the Commissioner denied a prior
application after an evidentiary hearing in 2000, Nursement alleged new mental
and physical impairments in her 2004 application. She also alleged that her new
impairments began in 2003, after the prior adjudication. The ALJ did not err by
evaluating new medical evidence about the mental component of Nursement’s
RFC in the second adjudication when she alleged new mental impairments and a
later onset date. See Social Security Acquiescence Ruling 97-4, 62 Fed. Reg.
64038 (Dec. 3, 1997) (interpreting Chavez v. Bowen and the SSA to permit
adjudicators to consider new evidence in a subsequent adjudication).
Nursement also claims that the ALJ could not change the mental portion of
her prior RFC finding without evidence of medical improvement. While “evidence
that the claimant’s condition has improved” is required to overcome the

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presumption of continued disability, see Perry v. Heckler, 722 F.2d 461, 464 (9th
Cir. 1983), evidence of medical “improvement” is not required in order to
reconsider prior findings after a previous determination of non-disability. See
Stubbs-Danielson, 539 F.3d at 1173 (requiring only “new information not
presented to the first judge” to reconsider findings).
Finally, Nursement also argues that because she has been diagnosed with
borderline intellectual functioning—based on her 1999 IQ score of 73—her mental
capacity for work cannot improve. The out-of-circuit cases she relies upon are
distinguishable because they are about using IQ scores as part of a finding of
mental retardation and not a RFC finding. Even assuming that Nursement’s IQ
remained fairly constant, the new medical evidence showed that her capacity for
work had changed by the time of the second adjudication in 2007. As part of the
current application, Nursement underwent two psychiatric examinations. Unlike
the psychologists who evaluated her in 1999, neither psychiatrist reported that
Nursement had moderate problems with her concentration and memory. Viewing
all of the new medical evidence, the record supports the new RFC finding that
removes the earlier restrictions on math and reading but still restricts Nursement to
simple and repetitive tasks.
AFFIRMED.

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