Tatyana Plummer v. NANCY A. BERRYHILL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TATYANA PLUMMER,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Commissioner of
Social Security,
Defendant-Appellee.
No. 17-16827
D.C. No. 2:16-cv-00753-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Allison Claire, Magistrate Judge, Presiding
Argued and Submitted December 19, 2018
San Francisco, California
Before: BOGGS,** PAEZ, and OWENS, Circuit Judges.
Tatyana Plummer appeals from the district court’s judgment affirming the
Administrative Law Judge’s (ALJ) denial of disability insurance benefits and
supplemental security income for the period since August 27, 2010. As the parties
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
JAN 10 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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are familiar with the facts, we do not recount them here. We review de novo a
district court’s decision to affirm the Commissioner of Social Security’s ruling.
See Schneider v. Comm’r of Soc. Sec., 223 F.3d 968, 973 (9th Cir. 2000). We will
reverse or modify an ALJ decision only if it contains legal error or is not supported
by substantial evidence in the record. Id. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
The ALJ misapplied res judicata principles to Plummer’s application.
Because Plummer’s prior application was denied, there was a presumption of
nondisability during this subsequent unadjudicated period. See Chavez v. Bowen,
844 F.2d 691, 693 (9th Cir. 1988). Evidence, however, showed that Plummer’s
condition had worsened since her prior application was denied, thus rebutting the
Chavez presumption. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) (“An
increase in the severity of the claimant’s impairment would preclude the
application of res judicata.”). The ALJ acknowledged that Plummer’s recent MRIs
“showed some worsening herniation.” The ALJ, therefore, erred in applying the
Chavez presumption. See Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988)
(“The doctrine of res judicata should not be applied rigidly in administrative
proceedings.”).
Nonetheless, we affirm because the application of res judicata was harmless.
See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The ALJ’s decision did

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not rest solely on res judicata; rather, the ALJ also conducted a thorough review of
the medical records and testimony to make an independent nondisability finding.
The ALJ offered “specific, legitimate reasons” why some medical opinions were
more persuasive than others. Lester, 81 F.3d at 831. This included discounting the
opinion of Plummer’s treating physician. The ALJ also provided “specific, clear,
and convincing reasons” why Plummer’s testimony lacked credibility, Tommasetti
v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008), and “germane reasons” why her
father’s testimony warranted little weight, Molina v. Astrue, 674 F.3d 1104, 1111
(9th Cir. 2012). Because substantial evidence supports the ALJ’s independent
nondisability finding, we affirm. See Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1193 (9th Cir. 2004).
AFFIRMED.

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