NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SYLVIA CURTISS, 

Plaintiff-Appellant, 

 v.

KILOLO KIJAKAZI, Acting Commissioner 

of Social Security, 

Defendant-Appellee.

No. 22-35371

D.C. No. 9:21-cv-00008-KLD

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Kathleen L. De-Soto, Magistrate Judge, Presiding

Submitted June 7, 2023**

Seattle, Washington

Before: HAWKINS, CALLAHAN, and BRESS, Circuit Judges.

Appellant Sylvia Curtiss (“Curtiss”) appeals the district court’s order

affirming the Commissioner of Social Security’s denial of her application for social 

security disability benefits. We “reverse [a finding of no disability] only if the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUN 9 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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[Administrative Law Judge’s (“ALJ”)] decision was not supported by substantial 

evidence in the record as a whole or if the ALJ applied the wrong legal standard.” 

Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021). We conclude that the ALJ’s 

decision is supported by substantial evidence, and thus affirm.

1. Effect of Prior Adjudication. 

Curtiss has applied twice for disability due to fibromyalgia, cervical 

degenerative disc disease, sciatica, anxiety, and a personality disorder. She was 

initially denied disability benefits in 2012. At that time, the ALJ found she had the 

residual functional capacity (“RFC”) to perform light work (“2012 RFC”). She 

filed a successive application for disability benefits, submitting new medical 

evidence as support. In 2020, a new ALJ denied disability benefits and assessed an 

RFC of medium work (“2020 RFC”). 

Curtiss contends that the ALJ erred by failing to adopt the prior 2012 physical 

RFC assessment. We disagree. An ALJ’s prior findings about a social security 

applicant’s RFC, education, and work experience are entitled to some preclusive 

effect as long as the adjudicator is not presented with new and material evidence on 

the issue. Chavez v. Bowen, 844 F.2d 691, 693‒94 (9th Cir. 1988) (“The principles 

of res judicata apply to administrative decisions, although the doctrine is applied 

less rigidly to administrative proceedings than to judicial proceedings.”). An ALJ 

must adopt prior findings unless there is (1) new and material evidence, or (2) a 
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change in the law, regulations or rulings affecting the finding. See Acquiescence 

Ruling 97-4(9), 1997 WL 742758, *3. 

Here, the ALJ properly declined to give the 2012 RFC preclusive effect. 

First, nearly all the medical evidence proffered by Curtiss post-dates the 2012 RFC 

finding. The ALJ relied entirely on the new medical evidence to determine the 2020 

RFC, and such medical evaluations conducted after a prior adjudication necessarily 

constitute new and material evidence. See Stubbs–Danielson v. Astrue, 539 F.3d 

1169, 1172–73 (9th Cir. 2008). Curtiss’s contention that the ALJ could not change 

the RFC finding without evidence of medical improvement is unavailing. Evidence 

of medical “improvement” is not required in order to reconsider prior findings after 

a previous determination of non-disability. See id. at 1173 (requiring only “new 

information not presented to the first judge” to reconsider findings). Second, the 

ALJ reasonably found that the issuance of Social Security Ruling 16-3p regarding 

the evaluation of subjective symptom testimony was a change in the law and 

regulations impacting the RFC determination. See Social Security Ruling 16-3p, 

2017 WL 5180304. On this record, the ALJ properly declined to give preclusive 

effect to the prior adjudication.

2. Frequency of Medical Appointments. 

The ALJ did not commit prejudicial error by failing to evaluate the frequency 

of Curtiss’s medical appointments under Social Security Ruling 96-8p in evaluating 
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her RFC.

1 The ALJ must assess all relevant evidence, such as the “effects of 

treatment, including limitations or restrictions imposed by the mechanics of 

treatment (e.g., frequency of treatment, duration, disruption to routine, side effects 

of medication)” in reaching an RFC determination. Social Security Ruling 96-8p, 

1996 WL 374184, at *5. Curtiss calculated her number of medical appointments 

after the alleged onset disability date as 2.6 doctor visits a month. Based on that 

calculation, she argues the ALJ erred by not taking into consideration how often she 

would need to miss work to attend appointments. Even assuming the ALJ erred by 

failing to address the frequency of treatment, any such error was harmless. See 

Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds 

by 20 C.F.R. § 404.1502(a). 

Fatal to her challenge here, Curtiss did not present evidence that her monthly

appointments would preclude her from working on a regular and continuing basis. 

She neither testified that her appointments would result in work-related absences, 

nor did medical providers opine on the issue. On the contrary, the record establishes 

that Curtiss worked for approximately three months as a cashier, and there is no 

evidence that the frequency of her medical appointments precluded her from regular 

1 Curtiss further contends that the ALJ’s questioning of the Vocational Expert was 

deficient because it failed to include the functional limitations of her frequent 

medical appointments. Because we find no error in the RFC determination, her 

challenge here likewise fails. 
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and continuous work. Instead, she terminated her employment by “walk[ing] off 

the job” in embarrassment after accidentally running into a fixed beam. Because 

Curtiss failed to demonstrate her treatment would actually interfere with her gainful 

employment, we find no harmful error in the ALJ’s RFC determination. See 

Molina, 674 F.3d at 1115.

AFFIRMED.