Tina Spence v. Commissioner of Social Security

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12909
Non-Argument Calendar
____________________
TINA SPENCE,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-00855-AAS
____________________
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2 Opinion of the Court 21-12909
Before J ILL PRYOR , NEWSOM , and B RANCH, Circuit Judges.
PER CURIAM:
Tina Spence appeals the district court’s order affirming the
Social Security Commissioner’s denial of an application for a period
of disability and supplemental security income (“SSI”) pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3). She argues that the administra-
tive law judge erred by not applying administrative
res judicata to
a previous adjudication—which found that she retained the resid-
ual functional capacity (“RFC”) to perform sedentary work—be-
cause there was no indication that her condition had improved.
But because the ALJ’s refusal to apply
res judicata accorded with
the Social Security Administration’s interpretation of one of its reg-
ulations and Spence hasn’t properly challenged that interpretation,
we affirm.1
A claimant becomes eligible for SSI “in the first month
where she is both disabled and has an SSI application on file.”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per cu-
riam). A disability is defined as an “inability to engage in any sub-
stantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a
1 We review the ALJ’s decision “to determine whether it is supported by sub-
stantial evidence” and review the ALJ’s application of legal principles
de novo.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
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21-12909 Opinion of the Court 3
continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). The burden is primarily on the claimant to prove
that she is disabled.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001). “The social security regulations establish a five-step
evaluation process, which is used to determine disability.”
Moore,
405 F.3d at 1211. The last two steps of this process consider
whether, in light of her RFC, the claimant can perform her past
relevant work and, if not, whether she can adjust to other work,
taking into consideration her RFC, age, education, and work expe-
rience. 20 C.F.R. § 416.920(a)(4).
If a claimant is denied benefits and has finished pursuing her
administrative-review rights or declines such review, she may ap-
ply again in a separate application claiming a later disability-onset
date.
See Procedures for Handling Requests to File Subsequent
Applications for Disability Benefits, SSR 11-1p, 76 Fed. Reg. 45309,
45310 (July 28, 2011). A second application starts the process anew
and potentially permits the applicant to obtain benefits for the new
period of time.
See id. at 45311.
The Social Security Act directs that “[t]he findings and deci-
sions of the Commissioner . . . after a hearing shall be binding upon
all individuals who were parties to such hearing.” 42 U.S.C.
§ 405(h). Pursuant to its rulemaking authority,2 the Social Security
2 The Act gives the Commissioner the authority to “make rules and regula-
tions and to establish procedures . . . which are necessary or appropriate to
carry out [its] provisions” and to “adopt reasonable and proper rules and reg-
ulations to regulate and provide for the nature and extent of the proofs and
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4 Opinion of the Court 21-12909
Administration promulgated a regulation explaining when admin-
istrative
res judicata will apply in its proceedings: An ALJ may “dis-
miss a hearing request entirely or . . . refuse to consider any one or
more of the issues” because of
res judicata when the SSA has “made
a previous determination or decision . . . on the same facts and on
the same issue or issues, and this previous determination or deci-
sion has become final by either administrative or judicial action.”
20 C.F.R. § 416.1457(c)(1);
see Cash v. Barnhart, 327 F.3d 1252,
1255 (11th Cir. 2003) (per curiam).
Since promulgating that regulation, the SSA has interpreted
it to mean that
res judicata applies to findings in a prior decision
only “if the same parties, facts and issues are involved in both the
prior and subsequent claims.” Acquiescence Ruling 97-4(9), 62 Fed.
Reg. 64038, 64039 (Dec. 3, 1997). And, crucially for this case, “if the
subsequent claim involves deciding whether the claimant is disa-
bled
during a period that was not adjudicated in the final determi-
nation or decision on the prior claim, SSA considers the issue of
disability with respect to the unadjudicated period
to be a new issue
that prevents the application of administrative
res judicata.”
Id.
(emphasis added). Accordingly, the “SSA considers the facts and
issues
de novo” in a subsequent disability claim “involving an un-
adjudicated period” and does not adopt findings from prior
evidence and the method of taking and furnishing the same.” 42 U.S.C.
§ 405(a).”
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21-12909 Opinion of the Court 5
decisions in determining whether the claimant is disabled with re-
spect to the unadjudicated period.
Id.
Here, Spence argues only that the ALJ who decided her cur-
rent application for SSI erred by failing to give
res judicata effect to
the prior ALJ decision on her first application.3 But the previous
decision concerned the period of March 13, 2013 through February
4, 2016, while the present application covered the time period of
April 14, 2017 through May 6, 2019. Therefore, Spence’s subse-
quent claim “involves deciding whether [she was] disabled during
a period that was not adjudicated” in the prior claim—which, ac-
cording to the SSA’s interpretation of 20 C.F.R. § 416.1457(c)(1),
means that this is a “new issue” and
res judicata doesn’t apply. Ac-
quiescence Ruling 97-4(9),
supra, at 64039.
Spence hasn’t argued that we should reject the SSA’s inter-
pretation of its own regulation or given us any reason to think that
we should decline to apply the deference we typically give “to
agencies’ reasonable readings of genuinely ambiguous regula-
tions.”
Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019) (citing
Auer v.
Robbins, 519 U.S. 452 (1997), and
Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410 (1945)). Nor has she explained why we should
reverse course from our long line of (admittedly unpublished) cases
3 Spence does not argue on appeal that the ALJ’s determination was not sup-
ported by substantial evidence, so that argument is abandoned.
See Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014) (noting that
a party abandons an issue on appeal by mentioning it only in passing or with-
out providing substantive argument in support).
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6 Opinion of the Court 21-12909
that, consistent with the SSA’s interpretation, have affirmed the
agency’s refusal to give preclusive effect to prior adjudications con-
cerning different time periods.
See, e.g.,
Diaz v. Comm’r of Soc.
Sec., 828 F. App’x 560, 562-63 (11th Cir. 2020) (per curiam);
Torres
v. Comm’r of Soc. Sec., 819 F. App’x 886, 888-89 (11th Cir. 2020)
(per curiam);
Griffin v. Comm’r of Soc. Sec., 560 F. App’x 837, 844
(11th Cir. 2014);
McKinzie v. Comm’r of Soc. Sec., 362 F. App’x 71,
73 (11th Cir. 2010) (per curiam);
Moreno v. Astrue, 366 F. App’x 23,
27 (11th Cir. 2010) (per curiam);
Luckey v. Astrue, 331 F. App’x 634,
638 (11th Cir. 2009) (per curiam). Therefore, because Spence’s ap-
plication concerned a time period that wasn’t adjudicated in her
prior claim, the ALJ wasn’t required to apply
res judicata.
AFFIRMED.
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