                                                                              FILED
                           NOT FOR PUBLICATION                                APR 25 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DOROTHY J. NURSEMENT,                            No. 10-56762

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00269-JC

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                    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.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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,


                                     Page 2 of 4
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


                                    Page 3 of 4
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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