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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Kristian Grube, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-04263-PHX-JZB 

ORDER 

 Plaintiff Kristian Grube seeks review under 42 U.S.C. § 405(g) of the final decision 

of the Commissioner of Social Security (“the Commissioner”), which denied him disability 

insurance benefits and supplemental security income under sections 216(i), 223(d), and 

1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative Law 

Judge (“ALJ”) is based on legal error, the Commissioner’s decision will be vacated and 

the matter remanded for further administrative proceedings. 

I. Background. 

 Plaintiff Grube applied for disability insurance benefits and supplemental security 

income for the first time on June 14, 2007, alleging disability beginning August 5, 2005. 

On March 12, 2010, the ALJ issued a decision that Plaintiff was not disabled within the 

meaning of the Social Security Act. The Appeals Council denied Plaintiff’s request for 

review of the hearing decision on August 25, 2010. The United States District Court for 

the District of Arizona affirmed the ALJ decision on January 3, 2012. The United States 
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Court of Appeals for the Ninth Circuit also affirmed the ALJ decision on Mar 28, 2014. 

On April 15, 2014, Plaintiff again applied for disability insurance benefits and 

supplemental security income, alleging disability beginning March 13, 2010. On April 18, 

2016, he appeared with his attorney and testified at a hearing before the ALJ. A vocational 

expert also testified. During the hearing and through counsel, the alleged onset date was 

amended to December 10, 2010 

On May 31, 2016, the ALJ issued a decision that Plaintiff was not disabled within 

the meaning of the Social Security Act. Therein, the ALJ relied on the doctrine of res 

judicata, stating that “a prior final and binding decision of nondisability by an 

Administrative Law Judge gives rise to a presumption of continuing nondisability.” 

(AR 17-32.) In her decision, the ALJ found that Plaintiff had shown changed circumstances 

sufficient to rebut the presumption, but declined to reevaluate Plaintiff’s residual functional 

capacity, education, and work experience, because Plaintiff had failed to show “new and 

material evidence” on those findings. (AR 20.) Applying “res judicata effect to the prior 

findings in the March 12, 2010 hearing decision,” the ALJ found Plaintiff was not disabled 

under sections 216(i) and 223(d) of the Social Security Act through September 30, 2011.” 

(AR 20-32.) The Appeals Council denied Plaintiff’s request for review of the hearing 

decision, making the ALJ’s decision the Commissioner’s final decision. 

On appeal, Plaintiff argues that the ALJ committed legal error in her application of 

res judicata to Plaintiff’s residual functional capacity and asks the Court to vacate her 

decision and remand for a computation of benefits. 

II. Legal Standard. 

 The district court reviews only those issues raised by the party challenging the ALJ’s 

decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set 

aside the Commissioner’s disability determination only if the determination is not 

supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 

630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, 

and relevant evidence that a reasonable person might accept as adequate to support a 
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conclusion considering the record as a whole. Id. In determining whether substantial 

evidence supports a decision, the court must consider the record as a whole and may not 

affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a general 

rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of 

which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. 

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 

III. Analysis.

 A. The ALJ Erred in Its Application of Res Judicata. 

 Principles of res judicata apply less rigidly in administrative proceedings than in 

judicial proceedings. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). Where there is 

a finding against disability in a previous proceeding, there will be a presumption of 

continuing nondisability in future proceedings. Id. A claimant can overcome this 

presumption by proving “changed circumstances” that indicate greater disability than 

existed in the prior proceeding. Id. Changed circumstances may include “an increase in the 

severity of the claimant’s impairments, a change in the claimant’s age category, or the 

existence of an impairment that was not considered in an earlier decision.” Miglioretto v. 

Comm’r Soc. Sec. Admin., No. 6:12-CV-01136-JE, 2013 WL 4876022, at *14 (D. Or. Sep. 

11, 2013), aff’d sub nom. Miglioretto v. Colvin, 647 F. App’x 667 (9th Cir. 2017).1

 The 

ALJ acknowledged that Plaintiff demonstrated changed circumstances sufficient to rebut a 

presumption of non-disability. (AR 19.) Specifically, Plaintiff alleged a worsening of 

existing symptoms and the development of shoulder impingement, which constituted a new 

impairment not considered in the prior determination. Id. The Court finds that the ALJ 

reasonably came to the conclusion that a presumption of continuing nondisability applied 

to the proceeding and that Plaintiff rebutted that presumption by demonstrating changed 

 

1

 A change in the criteria for determining disability is also considered to be a changed circumstance for purposes of rebutting a presumption of continuing nondisability. AR 97- 4(9) (S.S.A.), 1997 WL 742758. Plaintiff contends that SSR 16-3, which was issued after 

the first ALJ’s 2010 decision in Plaintiff’s case, alters the way in which the ALJ was obligated to consider opinion evidence. As the Court is remanding to reconsider the RFC and determination of disability under current guidelines, it is unnecessary to address this contention here. 
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circumstances. 

Plaintiff contends that the ALJ committed error in its application of res judicata to 

the prior ALJ’s determination of his residual functional capacity. Under Chavez, after a 

claimant has demonstrated changed circumstances that preclude a presumption of 

continuing nondisability, res judicata may nevertheless apply to certain findings contained 

in the prior ALJ’s determination of nondisability. 844 F.2d at 694. See also AR 97-4(9) 

(S.S.A.), 1997 WL 742758. In Chavez, those findings included the claimant’s residual 

work capacity, education, and work experience. 844 F.2d at 694. The court in Chavez held 

that inquiries into these findings could only be reopened in the presence of “new and 

material evidence.” Id. In Chavez, the changed circumstance of an increase in the 

claimant’s age was not accompanied by any other change that would have altered his 

residual functional capacity, so the court declined to reopen the decision on the claimant’s 

RFC. 

New evidence can refer to evidence of the claimant’s condition at the time of the 

prior decision or to his or her condition at a subsequent period. A prior ALJ’s findings as 

to the claimant’s condition at the time of the prior decision are generally entitled to 

preclusive effect under Chavez, but an ALJ’s authority to apply res judicata to the period 

subsequent to the prior decision is more limited See Jamtaas v. Berryhill, 706 F. App’x 

401 (9th Cir. 2017); Lester v. Chater, 81 F.3d 821, 827, as amended (Apr. 9, 1996). 

Compare Bose v. Astrue, No. CV 09-02257 -PHX-MHM, 2011 WL 1211601 (D. Ariz. 

Mar. 31, 2011) (“Plaintiff cannot attempt to resurrect medical facts that have already been 

decided simply by having his doctor refer to those facts at a later time.”). If the facts that 

constitute a changed circumstance include new or worsening symptoms, the ALJ is 

obligated to analyze the RFC in light of the new evidence. See Lester, 81 F.3d at 828-30 

(finding that the ALJ should have considered the combined effects of all mental and 

physical impairments, including those “not considered in the previous application”); 

Vasquez v. Astrue, 547 F.3d 1101, 1111, (9th Cir. 2008) (remanding and instructing the 

ALJ to consider newly raised evidence in “mak[ing] a determination as to [claimant’s] 
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residual functional capacity and entitlement to benefits” without applying principles of res 

judicata and without giving any degree of deference to the first ALJ’s previous decision). 

“In Social Security cases the ALJ has a special duty to fully and fairly develop the 

record and to assure that . . . claimant’s interests are considered.” Brown v. Heckler, 713 

F.2d 441, 443 (9th Cir. 1983). The Social Security Act is remedial and “to be construed 

liberally” by courts. Doran v. Schweiker, 681 F.2d 605, 607 (9th Cir. 1982). In determining 

whether new evidence is “material,” the Ninth Circuit has adopted the Fifth Circuit’s 

standard that evidence is sufficiently material to require a remand “only where there is a 

reasonable possibility that the new evidence would have changed the outcome of the 

Secretary’s determination had it been before him.” Booz v. Sec’y of Health & Human 

Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984) (quoting Dorsey v. Heckler, 702 F.2d 597, 

604-05 (5th Cir. 1983)). 

Here, the ALJ excluded all treatment records for dates after the date last insured, 

stating those records are “irrelevant.” (AR 24.) This is plain error. The law is clear that 

observations made after the period for disability may be relevant in assessing disability. 

Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). “Medical records are inevitably 

rendered retrospectively and should not be disregarded solely on that basis.” Id. The ALJ 

committed legal error by failing to consider any medical observations made after the date 

last insured, thereby rendering Plaintiff unable to provide evidentiary support for his claim 

of the new impairment of shoulder impingement. 

 B. Remand. 

 Where an ALJ fails to provide adequate reasons for rejecting the opinion of a 

physician, the Court must credit that opinion as true. Lester, 81 F.3d at 834. An action 

should be remanded for an immediate award of benefits when the following three factors 

are satisfied: (1) the record has been fully developed and further administrative proceedings 

would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 

for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 

improperly discredited evidence were credited as true, the ALJ would be required to find 
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the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) 

(citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008), Lingenfelter v. 

Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007), Orn, 495 F.3d at 640, Benecke v. Barnhart, 

379 F.3d 587, 595 (9th Cir. 2004), and Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 

1996)). There is “flexibility” which allows “courts to remand for further proceedings when, 

even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record 

as a whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d 

at 1020. 

 Here, factor two is clearly established. The ALJ did not consider evidence from after 

Plaintiff’s date last insured and failed to provide legally sufficient reasons for doing so. 

Factor one, however, is not met. The Court cannot conclude that the record is fully 

developed because the ALJ did not even consider evidence after the date last insured, much 

less secure consultative evaluations for Plaintiff’s shoulder or take any other action to 

ensure the record was fully and fairly developed. “In Social Security cases the ALJ has a 

special duty to fully and fairly develop the record and to assure that the claimant’s interests 

are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Accordingly, the 

Court will vacate the ALJ’s decision and remand for further proceedings. On remand, the 

ALJ should consider all relevant evidence and determine whether there has been a change 

to the Plaintiff’s RFC and whether such a change, when considered in the five-step 

analysis, would result in a finding of disability. 

IT IS ORDERED that the final decision of the Commissioner of Social Security is 

vacated and this case is remanded for further proceedings consistent with this opinion. 

The Clerk shall enter judgment accordingly and terminate this case. 

 Dated this 25th day of February, 2019. 

Honorable John Z. Boyle 

United States Magistrate Judge