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Marcelina Cubilo v. Michael J. Astrue

January 31, 2012


The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge


Plaintiff ("Cubilo") filed this action on December 22, 2010. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on January 19 and 28, 2011. (Dkt. Nos. 8, 9.) On October 20, 2011, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court affirms the decision of the Commissioner.


On November 1, 2007, Cubilo filed an application for disability insurance benefits and supplemental security income benefits alleging an onset date of May 1, 2003.*fn1 AR 10, 189-94. The applications were denied initially and upon reconsideration. AR 10, 127-31, 135-39. Cubilo requested a hearing before an Administrative Law Judge ("ALJ"). AR 141. On June 9, 2009, the ALJ conducted a hearing at which Cubilo and a vocational expert ("VE") testified. AR 69-109. On January 29, 2010, the ALJ issued a decision denying benefits. AR 7-41. On October 29, 2010, the Appeals Council denied the request for review. AR 1-4. This action followed.


Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.


A. Disability

A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003).

B. The ALJ's Findings

The ALJ found Cubilo has the severe impairments of "poorly controlled diabetes with peripheral neuropathy and retinopathy, status post arthroscopic debridement and manipulation of the right shoulder for adhesive capsulitis and tendonitis in January 2005, adhesive capsulitis and tendonitis of the left shoulder with impingement and obesity." AR 37. Cubilo has the residual functional capacity ("RFC") to perform light work, "that is, lift and carry up to 10 pounds frequently and 20 pounds occasionally, stand and/or walk 6/8 hours, sit 6/8 hours, frequently climb, balance, stoop, kneel, crouch and crawl, do overhead shoulder activities 4/8 hours, limited depth perception, accommodation and field of vision in right eye and with no limitations on the left eye, so that the individual is essentially monocular." Id. She is capable of performing past relevant work as a bindery operator. AR 39. In addition, there are other jobs that exist in significant numbers in the national economy that Cubilo can also perform, such as cashier II and storage facility clerk. AR 39-40.

C. Presumption of Continuing Non-disability and Changed Circumstances

Cubilo contends the ALJ erred by not giving res judicata effect to the prior ALJ's RFC determination.

The principle of res judicata applies to administrative decisions, albeit less rigidly than in judicial proceedings. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). To overcome a presumption of continuing non-disability, a claimant "must prove 'changed circumstances' indicating a greater disability." Id. at 693. Attainment of "advanced age" (55 years old for purposes of benefits), for example, constitutes a changed circumstance precluding application of res judicata. Id.; Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) (change in age category, increase in severity of an impairment, or existence of new impairment would constitute changed circumstances). Cubilo changed age category on her 50th birthday on May 20, 2007.

The prior ALJ's "findings concerning the claimant's residual functional capacity, education, and work experience are entitled to some res judicata consideration in subsequent proceedings." Chavez, 844 F.2d at 694. "[S]uch findings cannot be reconsidered by a subsequent judge absent new information not presented to the first judge." Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008). Medical evaluations conducted after the first disability determination "necessarily present[] new and material information not presented to the first ALJ." Id.

In a decision dated November 17, 2006, the prior ALJ found that Cubilo was not disabled. AR 118. Cubilo had the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently; stand, walk and sit for six hours in an eight-hour work day; occasionally climb, bend, kneel, crouch and crawl; and occasionally reach overhead with the bilateral upper extremities. She had a sit/stand option, with standing and walking up to 10 minutes at a time. AR 115. The prior ALJ determined that although Cubilo could not return to her past relevant work, there were a significant number of light exertion jobs existing in the national economy that Cubilo could do in spite of her limitations, such as call-out operator; counter clerk, photo; and usher. AR 116.

Here, the ALJ found no basis to reopen the previous determination. AR 12. Based on medical evidence after the prior November 17, 2006 decision, the ALJ did not adopt the previous residual functional capacity determination. AR 28. "[T]he current medical record and residual functional capacity assessments do not require a limitation to occasional postural activities and occasional overhead reaching with the bilateral upper extremities or a sit/stand option, as previously found by [the prior ALJ]." Id. The ALJ also added a limitation for Cubilo's monocular vision. Id.

To support her RFC assessment, the ALJ expressly relied on medical evaluations conducted after the first disability determination. Cubilo argues that "[t]he ALJ does not cite even one shred of evidence indicating improvement in Ms. Cubilo's medical condition since ALJ Benham's decision." (JS at 13.) The record does not support Cubilo's argument.

The ALJ carefully reviewed the medical records for the years 2007-2009 and discussed RFC assessments after the prior ALJ's decision. AR 16-28.

Dr. Enriquez, an examining physician, reported on February 22, 2008 that Cubilo's right shoulder pain is relieved with pain medication, she had normal cervical spine and lumbar ranges of motion, and she had mildly decreased range of motion of both shoulders AR 16, 17, 323, 325-26. Dr. Enriquez found Cubilo was able to lift and carry 50 pounds occasionally and 25 pounds frequently; stand, sit or walk 6 hours out of 8; perform ...

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