                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 05a0709n.06
                                   Filed: August 16, 2005

                                            No. 04-6168


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

SHIRLEY M. BREWSTER,

        Plaintiff-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
JO ANNE B. BARNHART, COMMISSIONER                      EASTERN DISTRICT OF TENNESSEE
OF SOCIAL SECURITY,

        Defendant-Appellee.

                                                /




BEFORE:         CLAY, GILMAN, and COOK, Circuit Judges.

        CLAY, Circuit Judge. In this appeal from the district court’s grant of summary judgment

to Defendant, Jo Anne B. Barnhart, Commissioner of Social Security (“the Commissioner”),

Plaintiff, Shirley M. Brewster (“Brewster”), challenges the denial of her application for Social

Security benefits, filed under the Social Security Act, 42 U.S.C. § 401 et seq. Specifically, Brewster

contends that the Administrative Law Judge (“ALJ”) who reviewed her case wrongly determined

that he was bound by a prior ALJ’s finding that Brewster’s past relevant work included work at a

light exertional level.
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       For the reasons that follow, we hold that the ALJ correctly determined that he was estopped

from reconsidering a prior finding on Brewster’s past relevant work, and we AFFIRM the district

court’s grant of summary judgment.

                                         BACKGROUND

       Brewster was born on November 25, 1943, and has a high school equivalency degree. The

record before this Court contains a great deal of documentation of various medical problems

Brewster has experienced; however, we will not summarize it here, inasmuch as that evidence is not

in dispute. Rather, the key and disputed issue in this case relates to Brewster’s past relevant work.

       Brewster filed an application for Social Security disability benefits on October 8, 1997,

alleging disability since November 26, 1995.         A hearing on that claim was conducted by

Administrative Law Judge (“ALJ”) Leonard Gajewski on September 17, 1998. Judge Gajewski

issued a decision unfavorable to Brewster on November 24, 1998, when Brewster was fifty-four

years old. Judge Gajewski found that Brewster “lacked the residual functional capacity to lift and

carry more than twenty pounds, or more than ten pounds on a regular basis, or perform tasks

requiring more than ‘frequent’ climbing, balancing, stooping, kneeling, crawling, and crouching.”

Judge Gajewski found that Brewster could not “perform tasks precluded by moderate difficulties in

maintaining social functioning,” concentration deficiencies limit her to “understanding,

remembering and carrying out simple, repetitive tasks,” and “she should avoid frequent interaction

with the general public.”

       Judge Gajewski also found that “in her past work as an assembly line worker at the light

level, as performed by [Brewster] and as generally performed in the national economy, [Brewster]



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was not required to lift more than twenty pounds, interact with the public on a regular basis, or

perform tasks precluded by her nonexertional limitations.” Judge Gajewski noted that this was in

contrast to her prior jobs as a waitress and as an “assembler/machine operator,” which were at the

medium level. Judge Gajewski therefore concluded that Brewster’s impairments did not prevent her

from performing her past relevant work as an assembly line worker and that she was not disabled.

       Brewster filed the benefits application at issue in the instant appeal on October 5, 2000,

alleging disability since November 25, 1998, the day after Judge Gajewski’s decision. That

application was denied initially and upon reconsideration. Brewster requested a hearing, which was

held before ALJ William Davis, in Knoxville, Tennessee, on July 3, 2001. Judge Davis issued an

unfavorable decision on March 22, 2002, and the Appeals Council declined review on September

13, 2002.

       Judge Davis found that Brewster’s residual functional capacity through the relevant period

was as follows: “to perform lifting and carrying of 20 pounds occasionally and 10 pounds

frequently, and to sit or stand/walk each for 6 of 8 hours, provided she perform no more than

frequent postural activities, and no jobs requiring frequent contact with the general public or more

than simple, repetitive tasks.” These findings intentionally mirrored those of Judge Gajewski, as

Judge Davis noted that there was no evidence of an improvement or decline in Brewster’s functional

capacity since the prior ALJ’s determination. Brewster does not dispute Judge Davis’ findings

regarding her residual functional capacity.

       More critical to this appeal was Judge Davis’ determination that “claimant’s past relevant

work as an assembly line worker did not require the performance of work-related activities



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                                            No. 04-6168

precluded by her residual functional capacity” through the relevant period. Brewster challenges the

determination that her residual functional capacity allows her to perform any of her prior relevant

work. Brewster relies in part on what she describes as new vocational evidence developed by the

Commissioner in relation to the application at issue here. Specifically, she points to the report of

a vocational specialist submitted on March 28, 2001, which states that she could return to her past

relevant job as a “casket coverer,”1 but classifies that job at a medium exertional level. Judge Davis

specifically noted that report in his findings, but discounted the job classification because Judge

Gajewski had already classified the same past work experience as “light,” and no new evidence had

been submitted to require that the issue be reconsidered.

       Pursuant to 42 U.S.C. § 405(g), Brewster filed a civil action for judicial review of the Social

Security Administration’s decision on November 5, 2002. Brewster then moved for judgment on

the pleadings, and the Commissioner moved for summary judgment. On August 8, 2004, the district

court denied Brewster’s motion for judgment on the pleadings, granted the Commissioner’s motion

for summary judgment, and affirmed the decision of the Commissioner. Brewster filed a motion to




       1
         The job referred to by the vocational specialist as “casket coverer” is the same job that Judge
Gajewski and Judge Davis refer to as “assembly line worker.” Brewster contends that the ALJs
erred in asserting that she worked as an assembly line worker. Quite apart from the question of
whether the vocational specialist’s report was even required to be considered by Judge Davis, which
is the major issue in this case, whether Brewster’s former job should be referred to by one name or
another is a semantic issue of no import to this appeal. The vocational specialist included
Brewster’s description of her work as a “casket coverer” in the report: “[S]he took casket lid off
assembly line sprayed it with glue put fabric on lid stamped it in put lid back on line for next step
in assembly.” Brewster’s work could thus be broadly described as “assembly line work” and
specifically described as “casket coverer.”

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alter or amend the judgment under Federal Rule of Civil Procedure 59(e) on August 23, 2004; which

was denied. Brewster then filed a notice of appeal to this Court on September 27, 2004.

                                         DISCUSSION

I.     WHETHER THE ADMINISTRATIVE LAW JUDGE (ALJ) PROPERLY ADOPTED
       A PRIOR ALJ’S CLASSIFICATION OF PLAINTIFF’S PAST RELEVANT WORK.

       1.      Standard of review

       “Judicial review of the [Commissioner’s] decision is limited to determining whether the

[Commissioner’s] findings are supported by substantial evidence and whether the [Commissioner]

employed the proper legal standards in reaching her conclusion.” Brainard v. Sec’y of Health &

Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Richardson v. Perales, 402 U.S. 389, 401,

91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).

       This appeal does not require us to consider whether substantial evidence supported the

finding that Brewster was not entitled to benefits, rather, the only issue is whether Judge Davis

employed the proper legal standard in determining that he was bound by Judge Gajewski’s prior

determination of Brewster’s past relevant work experience.

       2.      Legal standards for determining whether a plaintiff is disabled under the Social
               Security Act

       Under the Social Security Act, a person (other than one who is both blind and over age fifty-

five) is defined as disabled

       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, regardless of whether
       such work exists in the immediate area in which he lives, or whether a

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       specific job vacancy exists for him, or whether he would be hired if he
       applied for work.

       42 U.S.C. § 423(d)(2)(A).



       The ALJ follows a “five-step sequential evaluation process” to determine whether a claimant

is disabled within the meaning of the Social Security Act. If a finding of disability or non-disability

can be made at one of the steps in the process, the determination will be made then and the ALJ will

not reach the next step. The five steps are laid out at 20 C.F.R. § 404.1520 as follows:

              1) the ALJ considers the claimant’s work activity. If the claimant is
       doing substantial gainful activity, she is not disabled.
              2) the ALJ considers the severity of the claimant’s medical
       impairment. If the claimant does not have a severe medically determinable
       physical or mental impairment (or a combination of impairments that is
       severe) that meets the duration requirement of § 404.1509, she is not
       disabled.
                3) If the claimant has an impairment that meets or equals one of the
       listings in Appendix 1 of this subpart and meets the duration requirement, the
       claimant is disabled.
               4) the ALJ assesses the claimant’s residual functional capacity and
       her past relevant work; if she is still able to perform her past relevant work,
       she is not disabled.
               5) at the last step, the ALJ considers the assessment of the claimant’s
       residual functional capacity and her age, education, and work experience to
       see if she can make an adjustment to work. If she can make an adjustment
       to other work, she is not disabled. If she cannot make an adjustment to other
       work, she is disabled.



       20 C.F.R. § 404.1520.

       The regulations further explain that at Step 4, the ALJ will compare his or her assessment

of the claimant’s residual functional capacity with the physical and mental demands of the

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                                            No. 04-6168

claimant’s past relevant work (which is defined as work done within the past 15 years that

represented substantial gainful employment and lasted long enough for the claimant to learn to do

it). This inquiry is conducted regardless of the claimant’s age. If the ALJ decides at Step 4 that the

claimant has the residual functional capacity to perform her past relevant work, the ALJ will

conclude that the claimant is not disabled, without reaching the analysis set forth at Step 5. 20

C.F.R. § 404.1560(b).

       3.      Whether Judge Davis was collaterally estopped from reconsidering the exertion
               level of the claimant’s past relevant work.


       This Court will apply collateral estoppel to preclude reconsideration by a subsequent ALJ

of factual findings that have already been decided by a prior ALJ when there are no changed

circumstances requiring review. For example, in Dennard v. Sec’y of Health & Human Servs., 907

F.2d 598 (6th Cir. 1990), the plaintiff filed an initial disabilities claim with the Social Security

Administration, which was reviewed by an ALJ who determined that the plaintiff was not able to

perform his past relevant work. In a subsequent application for benefits, a second ALJ determined

that the plaintiff was able to perform his past relevant work. Citing 42 U.S.C. § 405(h), which

provides that “the findings and decision of the secretary after a hearing shall be binding upon all

individuals who were parties to such a hearing,” and not reviewable except as provided, this Court

held that the second ALJ was bound by the first ALJ’s finding with respect to the plaintiff’s ability

to perform his past relevant work, and reversed.

       In Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 839 (6th Cir. 1997), we reiterated that

§ 405(h) requires finality in Social Security decisions, holding that “[a]bsent evidence of an


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                                             No. 04-6168

improvement in a claimant’s condition, a subsequent ALJ is bound by the findings of a previous

ALJ.” In that case, we held that where the first ALJ to review a claim for benefits by the plaintiff

had determined that her residual functioning capacity was for “sedentary” work, a second ALJ’s

subsequent finding that she could perform “medium” work was precluded.

        In both cases, this Court emphasized the language of § 405(h), which describes as binding

all findings of the ALJ. We have yet to decide whether a party asserting collateral estoppel in a

Social Security case, in addition to making the § 405(h) showing that a prior ALJ has made a finding

on the same question sought to be litigated, must establish the traditional elements of collateral

estoppel. These are: 1) whether “the issue in the subsequent litigation is identical to that resolved

in the earlier litigation,” 2) whether “the issue was actually litigated and decided in the prior action,”

3) whether “the resolution of the issue was necessary and essential to a judgment on the merits in

the prior litigation,” 4) whether “the party to be estopped was a party to the prior litigation (or in

privity with such a party),” and 5) whether “the party to be estopped had a full and fair opportunity

to litigate the issue. Hammer v. I.N.S., 195 F.3d 836, 840 (6th Cir. 1999).

        Brewster argues that traditional collateral estoppel rules are not supplanted by § 405(h). That

position finds some support in an unpublished case in which this Court applied traditional collateral

estoppel rules without citation to § 405(h) in concluding that collateral estoppel did not bar a second

ALJ from considering the issue of whether a plaintiff’s skills were transferable. Rogers v. Comm’r

of Soc. Sec, No. 99-5650, 2000 WL 799332 (6th Cir. June 9, 2000) (unpublished). We will leave

for another day the resolution of the applicability of traditional collateral estoppel rules to cases also

governed by § 405(h) because, for reasons that we will explain, we are convinced that even under


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                                            No. 04-6168

the traditional collateral estoppel framework, Judge Davis was bound by Judge Gajewski’s earlier

finding on Brewster’s past relevant work.

       Brewster argues that under traditional collateral estoppel rules, Judge Gajewski’s finding that

her residual functional capacity permitted her to perform her past relevant work as an assembly line

worker/casket coverer does not preclude a finding to the contrary by Judge Davis. (In particular,

Brewster would like Judge Davis to have found that her past relevant work required medium

exertion, not light exertion as Judge Gajewski found.) Brewster specifically invokes the requirement

under the traditional framework that a finding be “necessary and essential” to a judgment in order

to have preclusive effect, and insists that Judge Gajewski’s finding with respect to her past relevant

work was not “necessary and essential.” Because we conclude, to the contrary, that Judge

Gajewski’s finding was “necessary and essential” to the judgment, and because there is no dispute

that the other elements of collateral estoppel are satisfied in this case, we hold that Judge Davis was

collaterally estopped from revisiting the issue of Brewster’s past relevant work.

       Judge Gajewski found that Brewster had the residual functional capacity to perform light

work, and that her past relevant work as an assembly line worker was also at a light exertional level,

and, hence, that she was capable of performing her past relevant work and thus not disabled. These

findings were made at Step 4 of the five-step sequential evaluation process. Brewster contends that

Judge Gajewski’s finding that her work as an assembly line worker should be classified as light was

not necessary or essential to the judgment. According to Brewster’s argument, if Judge Gajewski

had not been able to make a disability determination at Step 4, he would have been required to move

on to Step 5 of the evaluation process. At Step 5, Judge Gajewski would have considered his


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                                          No. 04-6168

assessment of Brewster’s residual functional capacity and her age, education, and work experience

to see if she could make an adjustment to work. As part of that analysis, Judge Gajewski would

have consulted Grid Rule 202.14, set forth at 20 C.F.R. § 404, Subpart P, App. 2, which instructs

that a high school graduate between the ages of fifty and fifty-four whose residual functional

capacity is limited to light work will not be found disabled regardless of her previous work

experience.

       Judge Gajewski’s decision issued the day before Brewster’s fifty-fifth birthday. Thus,

Brewster contends that she would have been found not disabled regardless of her past relevant work

experience at Step 5 of the evaluation process if Judge Gajewski had not determined at Step 4 that

she was capable of performing her prior light work. According to Brewster, this means that Judge

Gajewski’s finding that her prior work as an assembly worker was light was not necessary to the

judgment.

       We disagree. Judge Gajewski was required to assess the level of Brewster’s past relevant

work. Social Security regulations state that “[i]f we find that you have the residual functional

capacity to do your past relevant work, we will determine that you can still do your past work and

are not disabled. We will not consider your vocational factors of age, education, and work

experience or whether your past relevant work exists in significant numbers in the national

economy.” 20 C.F.R. § 404.1560(b)(3). In other words, if an ALJ finds that a claimant’s residual

functional capacity matches her past relevant work, the ALJ makes a determination of non-disability

at that point (Step 4) and does not move on to Step 5. Brewster’s suggestion that Judge Gajewski

could have simply resolved her claim at Step 5, without making any findings related to her past


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relevant work, is thus in error. Judge Gajewski’s finding that Brewster’s past relevant work

included light work as an assembly line worker was required by the regulations, essential to his

ultimate judgment that Brewster was not disabled, and, in the absence of new evidence, precluded

a second finding on Brewster’s past relevant work by Judge Davis.

       4.      Whether the Commissioner de facto reopened the case by accepting new
               vocational evidence.


       Brewster offers several rather cursory arguments in support of the position that even if

collateral estoppel applies in this case, the Commissioner reopened the issue of Brewster’s past

relevant work. None of these arguments is persuasive.

       First, Brewster notes that final decisions of the Commissioner are subject to reopening

pursuant to 20 C.F.R. § 404.987. However, this regulation is of no help to Brewster, as the ALJ

must find good cause to reopen a determination under the statute, and Judge Davis made no such

good cause finding in this case. 20 C.F.R. § 404.989.

       Perhaps recognizing this obstacle, Brewster argues that the Commissioner “de facto”

reopened the issue of Brewster’s past relevant work. As evidence of this reopening, Brewster cites

the fact that the Commissioner required her to complete a vocational history form, and the

Commissioner received an updated analysis from a vocational specialist. However, as Brewster also

notes, new and material evidence can be good cause for reopening a claim. Of course, an ALJ

would have no way of knowing whether a finding should be revisited in light of new and material

evidence if the ALJ simply relied on the past finding. For example, there might have been evidence

that Brewster had been gainfully employed since her prior application. Considering a new


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                                          No. 04-6168

vocational history form or a new analysis from a vocational specialist for the purpose of deciding

whether a prior finding should be reopened should not be construed as a de facto reopening. See

Sayegh v. Sec’y of Health & Human Servs., No. 90-1470, 1991 WL 60965 (6th Cir. Apr. 22, 1991)

(unpublished); Rogerson v. Sec’y of Health & Human Servs., 872 F.2d 24, 29 n.5 (3d Cir. 1989).

       In this case, despite Brewster’s claims to the contrary, “new and material evidence” was not

submitted. Brewster suggests that the vocational specialist’s classification of Brewster’s assembly

line work as “medium” constitutes such evidence; however, it instead simply represents a different

view of the same evidence that was earlier presented to Judge Gajewski. The Commissioner did not

de facto reopen the case simply by accepting a second vocational history form and a second

vocational specialist report in connection with Brewster’s second application for benefits.

                                        CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to

the Commissioner.




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