FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOUANNA STUBBS-DANIELSON, 

Plaintiff-Appellant, No. 07-35096

v. D.C. No. 

M CV-06-05212-JKA ICHAEL J. ASTRUE, Commissioner

of Social Security, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of Washington

J. Kelley Arnold, Magistrate Judge, Presiding

Argued and Submitted

June 5, 2008—Seattle, Washington

Filed August 22, 2008

Before: Ferdinand F. Fernandez and Consuelo M. Callahan,

Circuit Judges, and Irma E. Gonzalez,* District Judge.

Opinion by Judge Gonzalez

*The Honorable Irma E. Gonzalez, Chief Judge of the United States

District Court for the Southern District of California, sitting by designation. 

11439
COUNSEL

D. James Tree, Attorney at Law, Yakima, Washington, for the

plaintiff-appellant.

David Blume, Assistant Regional Counsel, Social Security

Administration, Seattle, Washington, for the defendantappellee. 

OPINION

GONZALEZ, Chief District Judge: 

Appellant Louanna Stubbs-Danielson appeals the district

court’s decision affirming the Commissioner of Social Security’s denial of her application for disability insurance benefits

under the Social Security Act. We affirm. 

I.

Stubbs-Danielson first applied for Supplemental Security

Income (“SSI”) benefits in 1986. The Commissioner

STUBBS-DANIELSON v. ASTRUE 11443
approved her application and Stubbs-Danielson received SSI

benefits from 1986 until roughly 1995, at which time her benefits were terminated as a result of her incarceration. She was

in prison from roughly 1994 to 2000 and, upon release, she

unsuccessfully applied for SSI benefits. Stubbs-Danielson

protectively filed the present application in 2002. 

In 2002, Stubbs-Danielson was 38 years old. She had a

high school education, having taken special education classes

and worked briefly as a telemarketer after her release from

prison. Stubbs-Danielson based her application on claimed

mental and physical limitations. Relevant here are evaluations

conducted by two physicians and one psychologist. 

In December 2002, Dr. Bryce A. McCollum evaluated

Stubbs-Danielson and diagnosed her with borderline intellectual functioning and said she showed good persistence, but a

slow pace in thought and action. Dr. McCollum observed that

Stubbs-Danielson could follow three-step instructions. IQ

testing resulted in scores that fell within the borderline range

of intellectual functioning. Dr. McCollum noted StubbsDanielson functions in the low average range for verbal comprehension, perceptual organization, reporting the meaning of

words, thinking abstractly, holding content in short term

memory while sorting and reporting, copying symbols, reasoning with spatial relationships, and non-verbal reasoning. 

In April 2003, Stubbs-Danielson injured her left wrist, left

leg, and back in an automobile accident. X-rays showed

degenerative changes in her lumbar spine. Later that month,

Lawrence Neville, M.D., examined her and diagnosed a lumbar strain and left leg bruises. He concluded that her standing,

walking, and sitting limitations would soon resolve. 

In May 2003, Bruce Eather, Ph.D., a State agency reviewing psychologist noted Dr. McCollum’s observation about

claimant’s slow pace and likewise indicated claimant has sev11444 STUBBS-DANIELSON v. ASTRUE
eral mental limitations. Dr. Eather stated claimant could perform simple work without public contact. 

The Commissioner denied Stubbs-Danielson’s 2002 application initially and on reconsideration. Stubbs-Danielson

requested, and was granted, a hearing before an administrative

law judge (“ALJ”). The ALJ took testimony from StubbsDanielson and a vocational expert. The ALJ subsequently rendered a decision denying the application in 2005. 

The ALJ used the required five-step sequential framework

to analyze whether Stubbs-Danielson was disabled. See 20

C.F.R. § 416.920. At step one, the ALJ found that StubbsDanielson had not engaged in substantial gainful activity

since the alleged disability onset date. At step two, the ALJ

concluded that although some of the alleged impairments

were not “severe” within the meaning of the applicable regulations, Stubbs-Danielson’s lumbar degenerative disc disease,

borderline intellectual functioning, adjustment disorder, and

obesity were severe. At step three, the ALJ found that none

of Stubbs-Danielson’s conditions met or medically equaled a

listed impairment in the regulations. Finding that StubbsDanielson’s allegations regarding her limitations were not

entirely credible, the ALJ determined that Stubbs-Danielson

“retain[ed] the residual functional capacity to perform simple,

routine, repetitive sedentary work, requiring no interaction

with the public.” At step four, based on the residual functional

capacity assessment, the ALJ found that Stubbs-Danielson

had no past relevant work. At step five, the ALJ relied on the

Medical-Vocational Guidelines and the testimony of the vocational expert to conclude that Stubbs-Danielson could perform

work as a “small products assembler,” with 1,000 jobs available regionally and 100,000 available nationwide, and as a

“packager/sorter,” with 800 jobs available regionally and over

80,000 available nationwide. The ALJ, therefore, concluded

that Stubbs-Danielson was not disabled. 

The Social Security Appeals Council denied StubbsDanielson’s request for review of the ALJ’s decision, which

STUBBS-DANIELSON v. ASTRUE 11445
renders the ALJ’s decision the Commissioner’s final decision.

The district court affirmed the ALJ’s decision, and this appeal

followed. 

II.

“We review de novo a district court’s judgment upholding

the denial of social security benefits. We may set aside a

denial of benefits only if it is not supported by substantial evidence or is based on legal error.” Lingenfelter v. Astrue, 504

F.3d 1028, 1035 (9th Cir. 2007) (internal citation and quotation marks omitted).

III.

Stubbs-Danielson argues the ALJ: (1) failed to give any res

judicata effect to her prior disability finding; (2) improperly

rejected the opinions of her treating doctors and improperly

found Stubbs-Danielson’s testimony was not credible; and (3)

failed to meet his burden of identifying specific jobs, available in significant numbers, which Stubbs-Danielson could

perform despite her impairments. 

1. Preclusive Effect of Prior Disability Determination 

As discussed above, Stubbs-Danielson received SSI benefits from 1986 until her incarceration in 1994, which resulted

in termination of benefits. She argues the ALJ erred in failing

to apply a presumption of disability based on this earlier

receipt of benefits. 

[1] In Warren v. Bowen, 804 F.2d 1120 (9th Cir. 1987) (per

curiam), this court held that while the social security administrator may be foreclosed from reevaluating the disability

determinations for current beneficiary recipients, the administrator is not required to presume that a previous disability has

continued through a non-medically related termination of benefits. Id. at 1121. We examined then-existing regulations

11446 STUBBS-DANIELSON v. ASTRUE
which provided that an applicant whose benefits were terminated for a non-medical reason would not be required to

resubmit evidence of his disability if the re-application came

within one year of the prior termination. Id. (citing 20 C.F.R.

§ 416.1321(b) (1986)). We reasoned that such regulations

supported the position that a presumption of disability should

not extend to an applicant whose re-application came almost

three years—i.e., more than one year—after a non-medical

termination. Id.

[2] The existing regulations compel the same result in this

case. The current regulations state that a claimant’s benefits

are suspended upon incarceration, and after 12 months of continuous suspension, benefits are terminated. See 20 C.F.R.

§§ 416.1325, 416.1335. While the regulations provide for the

resumption of suspended benefits upon an otherwise eligible

recipient’s release from custody, see 20 C.F.R. § 416.1325(b),

they provide for no such reinstatement where a recipient’s eligibility has been terminated after 12 consecutive months of

suspension. Accordingly, there is no basis for applying a presumption of continuing disability where, as here, a claimant’s

reapplication comes at least 6 years after a termination of benefits and more than 15 years after her previously successful

application. 

Our decision in Chavez v. Bowen, 844 F.2d 691 (9th Cir.

1988), does not compel a contrary result. In Chavez, we

observed that principles of res judicata apply to administrative

decisions regarding disability and impose an obligation on the

claimant, in instances where a prior ALJ has made a finding

of non-disability, to come forward with evidence of “changed

circumstances” in order to overcome a presumption of continuing non-disability. Id. at 693. We also explained that a previous ALJ’s findings concerning residual functional capacity,

education, and work experience are entitled to some res judicata consideration and such findings cannot be reconsidered

by a subsequent judge absent new information not presented

to the first judge. Id. at 694. Stubbs-Danielson has cited no

STUBBS-DANIELSON v. ASTRUE 11447
authority extending the principles of Chavez, which applied

preclusive effect to a prior finding of non-disability, to the

present context, an attempt to apply that same presumption to

a prior finding of disability. Further, Stubbs-Danielson has not

established that the ALJ improperly reconsidered prior findings, i.e., reconsidered prior findings based strictly on information already presented to the first judge. The entirety of the

medical evaluations presented with respect to the present

application were conducted after Stubbs-Danielson’s 1984

initial disability determination. These evaluations necessarily

presented new and material information not presented to the

first ALJ.

2. ALJ’s Rejection of Certain Testimony

Stubbs-Danielson next argues the ALJ improperly rejected

the opinions of the treating and examining doctors as well as

Stubbs-Danielson’s own subjective complaints. StubbsDanielson contends the ALJ failed to account for a number of

significant functional limitations assessed by the doctors of

record, including difficulties in maintaining pace, and failed

to provide reasons for rejecting those doctors’ opinions. She

also asserts the ALJ excluded various postural limitations on

bending, stooping, and crouching assessed by the Disability

Determination Services physicians who reviewed the file. 

i. The ALJ’s hypothetical question did not improperly

reject the opinions of Stubbs-Danielson’s doctors

The ALJ’s residual functional capacity (“RFC”) finding

was as follows: “the claimant retains the residual functional

capacity to perform simple, routine, repetitive sedentary work,

requiring no interaction with the public.” Stubbs-Danielson

argues the RFC finding does not capture the deficiency in

pace and other mental limitations identified by Dr. Bryce

McCollum and Dr. Bruce Eather. 

We disagree. While Dr. McCollum’s 2002 Intellectual

Assessment observed Stubbs-Danielson had a “slow pace,

11448 STUBBS-DANIELSON v. ASTRUE
both with thinking and her actions” and his 2005 Mental

Residual Functional Capacity Assessment (“2005 MRFCA”)

identified Stubbs-Danielson as “moderately limited” in her

ability to “to perform at a consistent pace without an unreasonable number and length of rest periods” and “mildly limited” in several other mental functioning areas, Dr. McCollum

did not assess whether Stubbs-Danielson could perform

unskilled work on a sustained basis. Dr. Eather’s report did.

Dr. Eather’s report, which also identified “a slow pace, both

in thinking & actions” and several moderate limitations in

other mental areas, ultimately concluded Stubbs-Danielson

retained the ability to “carry out simple tasks as evidenced by

her ability to do housework, shopping, work on hobbies,

cooking and reading.” While Mr. Wentz, a vocational expert,

provided Stubbs-Danielson’s representative his opinion that a

person with anything more than a mild limitation with respect

to pace would be precluded from employment except in a

sheltered workshop, the ALJ refused to lend any weight to the

assessment because it did not address Stubbs-Danielson’s

RFC and did not appear to be based on her individual record

as a whole. This represents the type of credibility determination charged to the ALJ which we may not disturb where, as

here, the evidence reasonably supports the ALJ’s decision.

See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

1195-96 (9th Cir. 2004). 

[3] The ALJ translated Stubbs-Danielson’s condition,

including the pace and mental limitations, into the only concrete restrictions available to him—Dr. Eather’s recommended restriction to “simple tasks.” This does not, as

Stubbs-Danielson contends, constitute a rejection of Dr.

McCollum’s opinion. Dr. Eather’s assessment is consistent

with Dr. McCollum’s 2005 MRFCA, which found StubbsDanielson is “not significantly limited” in her ability to “carry

out very short simple instructions,” “maintain attention and

concentration for extended periods,” and “sustain an ordinary

routine without special supervision.” As two of our sister circuits have recognized, an ALJ’s assessment of a claimant adeSTUBBS-DANIELSON v. ASTRUE 11449
quately captures restrictions related to concentration,

persistence, or pace where the assessment is consistent with

restrictions identified in the medical testimony. See Howard

v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (where state

psychologist both identified claimant as having deficiencies

of concentration, persistence or pace and pronounced claimant

possessed the ability to “sustain sufficient concentration and

attention to perform at least simple, repetitive, and routine

cognitive activity without severe restriction of function,”

ALJ’s hypothetical including ability to perform “simple, routine, repetitive tasks” adequately, captured claimant’s deficiencies in concentration persistence or pace); Smith v. Halter,

307 F.3d 377, 379 (6th Cir. 2001) (where ALJ’s hypothetical

incorporated concrete restrictions identified by examining

psychiatrist regarding quotas, complexity, and stress, ALJ did

not err in failing to include that claimant suffered from deficiencies in concentration, persistence, or pace). 

The Eighth Circuit’s decision in Howard is directly on

point. There, the court explicitly rejected a claim that an

ALJ’s hypothetical describing an ability to do “simple, routine, repetitive work” failed to capture deficiencies in concentration, persistence, or pace. The court noted the state

psychologist’s findings which concluded that the claimant,

despite certain pace deficiencies, retained the ability to do

simple, repetitive, routine tasks. See Howard, 255 F.3d at 582.

The medical evidence by Dr. Eather in the present case

reflects the same conclusion. 

[4] Accordingly, based on a review of the record, we conclude the ALJ’s RFC finding properly incorporated the limitations identified by Dr. McCollum and Dr. Eather, including

those related to pace and the other mental limitations regarding attention, concentration, and adaption. Further, to the

extent the ALJ’s RFC finding erroneously omitted StubbsDanielson’s postural limitations (only occasional balancing,

stooping, and climbing of ramps and stairs), any error was

harmless since sedentary jobs require infrequent stooping,

11450 STUBBS-DANIELSON v. ASTRUE
balancing, crouching, or climbing. See Social Security Ruling

(“SSR”) 96-9p, at 8 (postural limitations related to climbing,

balancing, crouching, would not erode the occupational base

for a full range of unskilled sedentary work; most unskilled

sedentary occupations require very little to occasional stooping). 

We note and distinguish decisions of the Third Circuit in

Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), and the

Seventh Circuit in Kasarsky v. Barnhart, 335 F.3d 539 (7th

Cir. 2003) (per curiam), which found error where an ALJ’s

hypothetical failed to explicitly set forth deficiencies in pace.

In Ramirez, unlike the present case, medical testimony

explicitly identified accommodation of a severe anxietyrelated pace deficiency as a significant precondition for claimant’s success in maintaining a full-time job. Specifically, the

medical testimony recommended a close physical proximity

between any potential employment location and the location

of the claimant’s children. See Ramirez, 372 F.3d at 555. The

ALJ’s hypothetical, however, did not include this limitation

and instead only provided for a reasonable number of personal phone calls, which the Third Circuit found rendered the

hypothetical incomplete. See id. The medical testimony in this

case does not endorse a particularized accommodation like the

one identified in Ramirez. As mentioned above, the only concrete limitations in this case were provided by Dr. Eather

who, after considering Stubbs-Danielson’s deficiencies in

pace and other areas, found Stubbs-Danielson able to perform

simple tasks. 

In Kasarsky, the court’s primary concern was the ALJ’s

failure to provide an explanation for the omission from the

hypothetical question of the ALJ’s earlier observation that the

claimant suffered from “frequent deficiencies of concentration, persistence, or pace,” Kasarsky, 335 F.3d at 544 (emphasis in original), an explanation which the court opined might

exist. No such deficiency is present in the ALJ’s opinion in

STUBBS-DANIELSON v. ASTRUE 11451
this case. The ALJ’s opinion explains the omission of StubbsDanielson’s moderate pace deficiencies from the RFC finding

by reference to Dr. Eather’s assessment. 

ii. The ALJ did not err in rejecting Stubbs-Danielson’s

complaints

[5] As for the claim that the ALJ improperly rejected

Stubbs-Danielson’s complaints without a subjective reason,

this charge is without merit. The ALJ sufficiently explained

his reasons for discrediting claimant’s testimony when he

explained as follows:

The claimant’s allegations as to the intensity, persistence and limiting effects of her symptoms are disproportionate and not supported by the objective

medical findings nor any other corroborating evidence. The record reflects that the claimant has normal activities of daily living, including cooking,

house cleaning, doing laundry, and helping her husband in managing finances. 

* * *

These activities tend to suggest that the claimant

may still be capable of performing the basic

demands of competitive, remunerative, unskilled

work on a sustained basis. 

In addition, the medical evidence, including Dr. Eather’s

report and Dr. Neville’s report—which both found StubbsDanielson could perform a limited range of work—support

the ALJ’s credibility determination. 

3. ALJ’s Step Five Analysis

Finally, Stubbs-Danielson argues the ALJ failed to meet his

step five burden of identifying specific jobs which she could

11452 STUBBS-DANIELSON v. ASTRUE
perform for at least three reasons: (a) the ALJ’s hypothetical

was incomplete; (b) the ALJ did not identify specific jobs the

claimant could perform; (c) the Vocational Expert’s (“VE’s”)

testimony was inconsistent with the Dictionary of Occupational Titles (“DICOT”) and the ALJ’s hypothetical question.

In arguing the ALJ’s hypothetical was incomplete, StubbsDanielson simply restates her argument that the ALJ’s RFC

finding did not account for all her limitations because the ALJ

improperly discounted her testimony and the testimony of

medical experts. As discussed above, we conclude the ALJ

did not. 

[6] We similarly find Stubbs-Danielson’s claim that the

ALJ did not identify specific jobs unpersuasive. The VE testified that someone with Stubbs-Danielson’s limitations could

perform “small product assembly jobs at the sedentary level”

and “packaging and sorting jobs” existing in significant numbers. Such a description is sufficiently specific to identify jobs

that match Stubbs-Danielson’s abilities. Indeed, several

assembly or sorting occupations in the DICOT correspond to

Stubbs-Danielson’s limitations. See DICOT §§ 713.687-018,

734.687-018, 521.687-086. 

Accordingly, we disagree with Stubbs-Danielson’s claim

that the VE’s testimony was inconsistent with the DICOT and

the ALJ hypothetical. 

IV.

For the foregoing reasons, we AFFIRM the judgment of the

district court. 

STUBBS-DANIELSON v. ASTRUE 11453