Browning

MEMORANDUM **

Plaintiff Grace Browning appeals the district court’s dismissal of her challenge to the Commissioner’s benefits decision. She asserts that the Attorney Advisor’s “fully favorable” resolution of her second application for benefits constituted a de facto reopening of her first application for benefits. See Lester v. Chater, 81 F.3d 821 , 827 n. 3 (9th Cir.1995) (noting that a de facto reopening of a Commissioner’s earlier decision can occur “where the Commissioner considers ‘on the merits’ the issue of the claimant’s disability during the already-adjudicated period”). We find Plaintiffs argument unpersuasive for three reasons.

First, the Attorney Advisor addressed this issue expressly and clearly disavowed any intention to reopen consideration of Plaintiffs first application for benefits. This case is therefore distinguishable from the cases on which Plaintiff relies, because there the adjudicator did not disclaim an intention to reopen an earlier application. Compare Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir.2001) (finding de facto reopening when “[t]he ALJ knew of the June 1991 denial of Lewis’s 1991 application. Yet he considered evidence of disability from as…