                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              NOV 18 2009

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

JUDITH A. JOHNSON,                               No. 08-35630

             Plaintiff - Appellant,              D.C. No. 3:07-cv-05298-FDB

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE,

             Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                   Franklin D. Burgess, District Judge, Presiding

                            Submitted August 5, 2009**
                               Seattle, Washington

Before: PREGERSON, NOONAN and M. SMITH, Circuit Judges.

       Judith Johnson (“Johnson”) appeals the denial of her application for Social

Security Disability Insurance benefits. The parties are familiar with the facts,




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
which we repeat here only to the extent necessary to explain our decision. We

have jurisdiction under 28 U.S.C. § 1291, and reverse.

      We review the Commissioner of Social Security’s (“the Commissioner’s”)

denial of benefits de novo. Gillett-Netting v. Barnhart, 371 F.3d 593, 595 (9th Cir.

2004). We will affirm the Commissioner’s decision if it is supported by

substantial evidence and applies the correct legal standards. Batson v. Comm’r of

Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

      “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). An ALJ’s

finding that a claimant is not disabled creates a presumption of nondisability.

Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). “The presumption does not

apply, however, if there are changed circumstances.” Id. (internal quotation

omitted). “An increase in the severity of the claimant’s impairment would

preclude the application of res judicata.” Id.

      Here, the first ALJ found that Johnson had degenerative disc disease, but

discounted her statements regarding her impairments and denied her claim. In the

second proceeding, Johnson submitted new evidence of more severe limitations,

including arm pain and numbness, cervical radiculopathy, and spinal stenosis. The


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second ALJ’s task was to determine whether Johnson’s current circumstances were

different from those found by the first ALJ. Instead, the second ALJ ignored the

first ALJ’s actual findings and conducted a new, retrospective inquiry into

Johnson’s medical condition at the time of the first ALJ’s decision. This was

improper. Preclusive effect attaches to the Commissioner’s prior findings, not to

retrospectively-determined facts that may have existed at the time of the prior

proceeding. 42 U.S.C. §405(h) (“The findings and decision of the Commissioner

of Social Security after a hearing shall be binding upon all individuals who were

parties to such hearing.”); see Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173

(9th Cir. 2008) (declining to afford preclusive effect to a prior decision where a

second ALJ examined new evidence not available to the first ALJ). The second

ALJ should have compared Johnson’s current limitations to the limitations found

by the first ALJ, not to the facts the second ALJ believed to have existed in 1999.

      The ALJ’s footnote cursorily stated that, even if changed circumstances did

exist, the new evidence would not change the first ALJ’s Residual Functional

Capacity finding. This explanation is insufficient. Flores v. Shalala, 49 F.3d 562,

571 (9th Cir. 1995) (ALJ “may not reject significant probative evidence without

explanation.” (internal quotation omitted)); SSR 96-8p. The second ALJ did not

provide specific and legitimate reasons for rejecting the post-March 1999 opinions


                                         -3-
of Johnson’s doctors. See Lester, 81 F.3d 821 at 830-31. Therefore, the second

ALJ’s determination that Johnson did not overcome the presumption of

nondisability; that Johnson can perform light, past relevant work; and that Johnson

is not disabled is not supported by substantial evidence.

      Accordingly, we REVERSE and REMAND to the district court with

instructions to remand to the Commissioner for analysis of whether Johnson’s

current limitations render her disabled.




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