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Fernandez v. Astrue


September 20, 2010


The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge



On October 16, 2009, plaintiff Oscar Fernandez ("Plaintiff") filed a complaint against defendant Michael J. Astrue ("Defendant" or "Commissioner"), the Commissioner of the Social Security Administration, seeking review of a denial of supplemental security income and disability insurance benefits. [Docket No. 3.]

On April 20, 2010, Defendant filed his answer, along with a certified copy of the administrative record. [Docket Nos. 12, 13.]

On April 20, 2010, this matter was transferred to the calendar of the undersigned Magistrate Judge. [Docket No. 14.] Both Plaintiff and Defendant subsequently consented to proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Docket Nos. 16, 19.]

Pursuant to an October 23, 2009 case management order, the parties submitted a detailed, 17-page joint stipulation for decision on June 24, 2010. [Docket No. 18.] The Court deems the matter suitable for adjudication without oral argument.

In sum, having carefully studied, inter alia, the parties' joint stipulation, the administrative record, and the prior decisions of the ALJ and this Court, the Court concludes that, as described below, Plaintiff's claim is foreclosed by the administrative res judicata doctrine.Plaintiff fails to provide any evidence of changed circumstances to rebut a continuing presumption of non-disability, which was established only two years ago by this very Court and must be afforded preclusive effect. Thus, the Court affirms the Commissioner's decision denying benefits.


Plaintiff has a fourth-grade education and was 53 years old on the date of his administrative hearing. (See Administrative Record ("AR") at 119, 403, 409.) His prior relevant work includes employment as a janitor. (Id. at 25, 431.)

Albeit, during the administrative hearing, the Administrative Law Judge ("ALJ") did note that Plaintiff previously testified that he completed the sixth grade. (See AR at 409.)

Plaintiff has filed three sets of applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act ("Act"), including the applications at issue herein. (Joint Stip. at 2); 42 U.S.C. § 405(g).

On June 15, 2004, Plaintiff filed his second set of applications for DIB and SSI on the basis of hypertension, diabetes, seizures, headaches, and memory loss. (AR at 57.) On November 24, 2006, the ALJ denied Plaintiff's request for benefits ("2006 Decision"). (Id. at 57-76.) On August 4, 2007, the Appeals Council affirmed the ALJ's decision. (Id. at 10.)

Following the Appeals Council's denial, Plaintiff filed an action in this Court, Case No. ED CV 07-6145 JTL, seeking review of the Commissioner's decision denying his claim. (AR at 10.) On August 18, 2008, the Court affirmed the ALJ's decision. (Id.)

On December 31, 2006, Plaintiff filed the current applications for SSI and DIB, claiming that he has been disabled since April 30, 2001 due to seizures, diabetes, high blood pressure, fatigue, pain, and high cholesterol.*fn1 (AR at 90, 119-126, 127-131, 132-134.) Plaintiff's applications were denied initially and on reconsideration, after which he filed a timely request for a hearing. (Id. at 10, 83, 84-88, 89, 90-94.)

On May 12, 2009, over two years after he filed his applications, Plaintiff, represented by counsel, appeared and testified at a hearing before an ALJ. (AR at 403, 405-431.) The ALJ also heard testimony from Alan E. Cummings, a vocational expert ("VE"). (Id. at 106, 403, 431-434.) On June 17, 2009, the ALJ issued an unfavorable decision denying Plaintiff's request for benefits. (Id. at 10-30.)

Applying a well-established five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since his alleged onset date of disability. (AR at 27.)

At step two, the ALJ found that Plaintiff suffers from severe impairments consisting of "seizure disorder, history of right hand injury, early degenerative changes in the right knee, diabetes mellitus, hypertension and obesity." (AR at 27 (emphasis omitted).)

At step three, the ALJ determined that the evidence does not demonstrate that Plaintiff's impairments, either individually or in combination, meet or medically equal the severity of any listing set forth in the Social Security regulations.*fn2 (AR at 27.)

The ALJ then assessed Plaintiff's residual functional capacity ("RFC")*fn3 and determined that he can perform light work, specifically, the ALJ found that Plaintiff can:

lift and carry up to 10 pounds frequently and 20 pounds occasionally, stand and/or walk 6/8 hours, sit 6/8 hours, push/pull frequently with the right upper extremity and push/pull occasionally with the right lower extremity, [handle] occasional walking on uneven terrain, otherwise normal push/pull with the bilateral upper extremities and bilateral lower extremities, occasional climbing, balancing, stooping, kneeling, crouching and crawling, frequent handling and fingering with the right upper extremity[.] (AR at 27 (emphasis omitted).)

The ALJ also found that Plaintiff's "bilateral upper extremities have normal reaching, handling, fingering and feeling[, but he should] avoid even moderate exposure to extreme heat and cold, unprotected heights and hazardous machinery." (AR at 27 (emphasis omitted).)

Based on Plaintiff's RFC, the ALJ found, at step four, that Plaintiff lacks the ability to perform his past relevant work. (AR at 29.)

At step five, based on Plaintiff's age, education, work experience, RFC, and the VE's testimony, the ALJ found that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform," including packager and inspector. (AR at 29-30(emphasis omitted).)

Thus, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the Act because he could adjust to his impairments and find another type of gainful employment. (AR at 30.)

Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. (AR at 3-5, 6.) The ALJ's decision stands as the final decision of the Commissioner.


A single disputed issue is presented here: whether the ALJ's finding that Plaintiff is "able to speak and understand 'at least a simple' conversation in English" conflicts with her finding that Plaintiff is able to perform the jobs of packager and inspector. (See Joint Stip. at 4-11, 15-16.)

Plaintiff contends that because the jobs of packager and inspector necessitate, according to the Dictionary of Occupational Titles, a "language development level two," which denotes, among other things, that the individual retains a passive vocabulary of 5,000 to 6,000 words and reads at a rate of 190-215 words per minute, the ALJ's finding conflicts with Plaintiff's actual English language skills. (Joint Stip. at 4.)


The arguments are straightforward. On the one hand, Plaintiff contends that the ALJ's finding regarding Plaintiff's language skills is inconsistent with her determination that Plaintiff can perform the jobs of packager and inspector. The jobs identified by the ALJ require a greater language skill level, as defined by the Dictionary of Occupational Titles, than that possessed by Plaintiff. (See Joint Stip. at 4-9.) Plaintiff further alleges that the ALJ failed to address this inconsistency, as she must, during her questioning of the VE or explain the conflict in her decision. (See id. at 9-11.)

On the other hand, Defendant argues that Plaintiff's claim is barred by administrative res judicata. Specifically, Plaintiff fails to demonstrate "changed circumstances" sufficient to deviate from a prior decision determining non-disability, including the earlier finding that Plaintiff could function as a packager and inspector -- the same job classifications cited here. (Joint Stip. at 11-13.) Defendant also maintains that, in any event, substantial evidence supports the ALJ's determination regarding Plaintiff's language ability to perform the jobs identified. (Id. at 13-15.)

The Court concurs with Defendant.

A. Absent Changed Circumstances, a Prior Decision's Findings Must Stand

"The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than to judicial proceedings." Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). Administrative res judicata "applies generally in Social Security cases [and] can be invoked both by a claimant and by the Social Security Administration." Bloch on Social Security § 5:18 (2008).

Thus, res judicata applies if the Commissioner has "made a previous determination or decision . . . about [a claimant's] rights on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action." 20 C.F.R. §§ 404.957(c)(1) & 416.1457(c)(1).

A previous final determination of non-disability creates a presumption of continuing non-disability with respect to any subsequent unadjudicated period of alleged disability. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996); see also Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 1985); Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 568-69 (9th Cir. 1983); Social Security Acquiescence Ruling ("SSAR")*fn4 97-4(9), 1997 WL 742758.

This presumption may be overcome by a showing of "changed circumstances." Chavez, 844 F.2d at 693; Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). To show "changed circumstances," the evidence must establish that the claimant suffers from an impairment that indicates a greater disability since the prior decision denying benefits. Chavez, 844 F.2d at 693.

In other words, the presumption of non-disability does not apply if the claimant raises an issue not considered in the previous decision, such as the existence of a new impairment, or demonstrates an increase in the severity of an impairment, either one of which adversely affects his residual functional capacity. See Lester, 81 F.3d at 827.

The presumption does apply, however, "where the final decision by the ALJ on the prior claim, which found the claimant not disabled, contained findings of the claimant's residual functional capacity, education, and work experience." SSAR 97-4(9), 1997 WL 742758, at *2 (emphasis added). In that event, the Social Security Administration "may not make different findings in adjudicating the subsequent disability claim unless there is new and material evidence relating to the claimant's residual functional capacity, education or work experience." Id.

B. Plaintiff Fails to Demonstrate Any Changed Circumstance

Here, the ALJ found that the circumstances had not materially changed since the date of the prior decision. (See AR at 11, 13, 14.) Plaintiff cannot contest this finding or otherwise meaningful demonstrate why res judicata principles should not bar his current claim. (See generally Joint Stip. at 2-11, 16.) At least three reasons compel this conclusion.

First, there is an admission of "no evidence" to reflect a "changed circumstance" on Plaintiff's ability to speak English as previously determined. At the administrative hearing, Plaintiff's counsel acknowledged that he had "NO evidence to overturn the two prior [ALJ] decisions issued on the prior claims filed by [Plaintiff], including the last final [ALJ] decision issued on November 24, 2008, that was affirmed by the District Court." (AR at 11.) Plaintiff's counsel stated that he "would be interested . . . in talking about new mental limitations which developed in 12/06," but submitted no new evidence apart from Plaintiff's testimony on those limitations. (Id. at 408.) Thus, Plaintiff, himself, opted to close the door on revisiting his education, including his English language capabilities. 20 C.F.R. § 404.988 (allowing for reopening prior determinations for good cause).

Second, Plaintiff's effort to wedge an incongruity here -- based on the ALJ's "vague" findings -- is also illusory. Plaintiff myopically focuses on the ALJ's conclusion that Plaintiff is "able to speak and understand 'at least a simple' conversation in English." (See Joint Stip. at 4.) The fuller finding, however, is that the ALJ explicitly found "no basis to reopen the previous determinations on [Plaintiff's] prior applications," including, naturally, the findings on his educational level to function as a packager or inspector. (AR at 13.) This rationale is lent additional heft when the ALJ also noted that Plaintiff consistently changes his reports on how much education he has. (See id. at 13, 28, 409-410.) Like Plaintiff, the ALJ also kept the door shut on Plaintiff's education.

Third, while Plaintiff argues that res judicata does not apply to his claim because "the ability to communicate English is not part of the sequential process but rather a vocational factor to be considered," (see Joint Stip. at 16), the Court is unable to locate any authority for such a carve-out proposition, and Plaintiff does not cite to any. (See generally id. at 1-17.) In fact, the authority that does exist strongly suggests that the scope of administrative res judicata and the related doctrine of collateral estoppel prevent, at a minimum, the re-litigation of Plaintiff's education under the circumstances presented here. Chavez, 844 F.2d at 694 ("Principles of res judicata made binding the first judge's determinations that the claimant . . . was of limited education[.]"); see also Clark v. Astrue, 2009 WL 2579486, at *2-*3 (C.D. Cal. 2009) (where plaintiff alleges same basis for medical disability that was previously alleged in his prior two claims for disability, presumption of continuing non-disability ordinarily applies).

In the end, it has already been judicially found once that Plaintiff can perform the jobs of packager and inspector. This was originally made by the ALJ in the 2006 Decision. (See AR at 75 (finding Plaintiff capable of performing jobs of "inspector, hand packager").) That decision was then, in turn, affirmed by this Court in 2008. (See id. at 80-82.) Plaintiff failed to meet his burden to rebut this presumption. Speculation cannot now substitute for "changed circumstances." See Ellison v. Astrue, 2008 WL 4425764, at *3 (C.D. Cal. 2008) (finding that plaintiff did not rebut the presumption of continuing non-disability where plaintiff presented no facts of changed circumstances, and instead, simply attacks ALJ's finding that plaintiff could perform jobs of sales clerk and account clerk).*fn5

Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits.

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