NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 9 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SYLVIA CURTISS, No. 22-35371

Plaintiff-Appellant, D.C. No. 9:21-cv-00008-KLD

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

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). [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

2 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

3 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.

4 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.

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