Brian Adrian Millner v. Frank Bisignano, Commissioner of Social Security

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 BRIAN ADRIAN MILLNER, Case No. 1:24-cv-00495-JLT-SKO

10 FINDINGS AND RECOMMENDATIONS Plaintiff, RECOMMENDING THAT PLAINTIFF’S 11 MOTION FOR SUMMARY JUDGMENT BE GRANTED, THE FINAL DECISION OF 12 v. THE COMMISSIONER OF SOCIAL SECURITY BE REVSERSED, AND THE 13 FRANK BISIGNANO, ACTION BE REMANDED TO THE Commissioner of Social Security,1 COMMISSIONER FOR FURTHER 14 P ROCEEDINGS 15 Defendant. (Doc. 13)

16 1 4-DAY DEADLINE _____________________________________/ 17

18 19 I. INTRODUCTION 20 On April 26, 2024, Plaintiff Brian Adrian Millner (“Plaintiff”) filed a complaint seeking 21 judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or 22 “Defendant”) denying his applications for disability insurance benefits (DIB) and Supplemental 23 Security Income (SSI) under the Social Security Act (the “Act”). (Doc. 1.) The matter is currently 24 before the Court on the parties’ briefs, which were submitted, without oral argument, to the Honorable 25 26

27 1 On May 6, 2025, Frank Bisignano was appointed the Commissioner of the Social Security Administration. See https://www.ssa.gov/news/press/releases/2025/#2025-05-07. He is therefore substituted as the defendant in this action. 28 See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the 1 Sheila K. Oberto, United States Magistrate Judge.2 2 For the reasons set forth below, the undersigned recommends that Plaintiff’s motion for 3 summary judgment be granted, that the final judgment of the Commissioner be reversed, and that the 4 action be remanded to the Commissioner for further proceedings. 5 II. BACKGROUND 6 Plaintiff protectively filed claims for DIB and SSI payments on September 2, 2021, and 7 December 1, 2021, respectively. (Administrative Record (“AR”) 17, 62, 72, 84, 95.) In both 8 applications, Plaintiff alleges he became disabled on August 17, 2021, due to paranoid personality 9 disorder and schizophrenia. (AR 17, 62, 72, 84, 95.) 10 Plaintiff was born in 1957 and was 64 years old on the alleged disability onset date. (AR 24, 11 61, 71, 83, 94.) He has at least a high school education and previously worked as a chef. (AR 24, 12 38, 53, 247.) 13 A. Administrative Proceedings 14 The Commissioner denied Plaintiff’s application for benefits initially on March 25, 2022, and 15 again upon reconsideration on June 23, 2022. (AR 17, 112–17, 119–25.) Consequently, Plaintiff 16 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 147–81.) The ALJ conducted 17 a hearing on February 21, 2023. (AR 30–60.) Plaintiff appeared by telephone at the hearing with his 18 attorney and testified. (AR 36–52.) A vocational expert also testified at the hearing. (AR 53–57.) 19 B. The ALJ’s Decision 20 In a decision dated April 14, 2023, the ALJ found that Plaintiff was not disabled, as defined 21 by the Act. (AR 17–25.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 22 §§ 404.1520 and 416.920. (AR 19–25.) The ALJ decided that Plaintiff met the insured status 23 requirements of the Act through September 30, 2023, and he had not engaged in substantial gainful 24 activity since August 17, 2021, the alleged onset date (step one). (AR 20.) At step two, the ALJ 25 found Plaintiff’s schizoaffective disorder to be severe. (AR 20.) Plaintiff did not have an impairment 26 or combination of impairments that met or medically equaled one of the listed impairments in 20 27

28 2 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 1 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 20–22.) 2 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)3 and applied the 3 assessment at steps four and five. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go 4 from step three to step four, we assess your residual functional capacity . . . . We use this residual 5 functional capacity assessment at both step four and step five when we evaluate your claim at these 6 steps.”). The ALJ determined that Plaintiff had the RFC: 7 to perform a full range of work at all exertional levels but with the following nonexertional limitations: [Plaintiff] can understand, remember, and carry out 8 simple tasks; can make simple work-related decisions; can have occasional work- related interactions with co-workers, supervisors, and the general public; and can 9 have occasional changes in the work setting. 10 (AR 22–23.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 11 expected to cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s subjective testimony as “not 12 entirely consistent with the medical evidence and other evidence in the record for the reasons 13 explained in this decision.” (AR 22.) 14 The ALJ determined that Plaintiff could not perform his past relevant work (step four) but 15 that, given his RFC, he could perform a significant number of jobs in the national economy, 16 specifically janitor, dishwasher, and hand packager (step five). (AR 24–25.) The ALJ concluded 17 Plaintiff was not disabled from August 27, 2021, through the date of the decision. (AR 32.) 18 Plaintiff sought review of this decision before the Appeals Council, which denied review on 19 March 8, 2024. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 20 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 21 III. LEGAL STANDARD 22 A. Applicable Law 23 An individual is considered “disabled” for purposes of disability benefits if they are unable 24 “to engage in any substantial gainful activity by reason of any medically determinable physical or

25 3 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES II 26 & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an individual’s 27 medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of 28 symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. 1 mental impairment which can be expected to result in death or which has lasted or can be expected 2 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 3 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 4 impairment or impairments are of such severity that [they] are not only unable to do [their] previous 5 work but cannot, considering [their] age, education, and work experience, engage in any other kind 6 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 7 “The Social Security Regulations set out a five-step sequential process for determining 8 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 9 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 10 Ninth Circuit has provided the following description of the sequential evaluation analysis: 11 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step 12 two and evaluates whether the claimant has a medically severe impairment or 13 combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of 14 impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 15 proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds 16 to step five and examines whether the claimant has the [RFC] . . . to perform any 17 other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 18 19 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 20 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 21 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” 22 Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 23 “The claimant carries the initial burden of proving a disability in steps one through four of the 24 analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 25 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to the 26 Commissioner in step five to show that the claimant can perform other substantial gainful work.” Id. 27 (citing Swenson, 876 F.2d at 687). 28 1 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 2 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 3 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is ‘more than a 4 mere scintilla,’” and means only “such relevant evidence as a reasonable mind might accept as 5 adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting 6 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Ford v. Saul, 950 F.3d 1141, 1154 7 (9th Cir. 2020). 8 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 9 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 10 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 11 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 12 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. Massanari, 13 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one rational 14 interpretation, the court may not substitute its judgment for that of the Commissioner.” (citations 15 omitted)). 16 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a specific 17 quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 143 F.3d 18 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, weighing both 19 evidence that supports and evidence that detracts from the [Commissioner’s] conclusion.’” Id. 20 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 21 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 22 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 23 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record that ‘the 24 ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti, 533 F.3d 25 at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he burden of 26 showing that an error is harmful normally falls upon the party attacking the agency’s determination.” 27 Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 28 1 Plaintiff asserts two claims of error: 1) that the RFC was not supported by substantial evidence 2 because the ALJ independently interpreted medical records without the aid of a medical expert rather 3 than further developing the record; and 2) that the ALJ failed to offer clear and convincing reasons 4 for rejecting Plaintiff’s subjective symptom complaints. The undersigned agrees that the ALJ’s RFC 5 determination lacks the support of substantial evidence and on that basis will recommend that the 6 decision be reversed and the action be remanded for further proceedings. 7 A. The ALJ’s RFC Determination is Not Supported by Substantial Evidence 8 An RFC is the most a claimant can do despite their limitations and is based upon all relevant 9 evidence in the record, including medical records, medical source statements, and symptom 10 testimony. 20 C.F.R. §§ 404.1545(a)(1)–(3), 416.945(a)(1)–(3); Shafer v. Barnhart, 120 F. Appx. 11 688, 698 (9th Cir. 2005). It is the ALJ’s responsibility to make the RFC assessment and to translate 12 the medical evidence into the RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c); Rounds v. Comm’r SSA, 13 807 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible for translating and incorporating 14 clinical findings into a succinct RFC.”). Indeed, the ALJ’s RFC determination need not mirror any 15 particular provider’s opinion. See e.g., Petrini v. Berryhill, 705 F. App’x. 511, 512 (9th Cir. 2017). 16 In this case, the State agency medical consultants found that there was “insufficient evidence 17 to assess [Plaintiff’s] capacity for work-related tasks.” (AR 23, 68, 78, 90, 101.) The ALJ considered 18 these statements but found they were “unpersuasive” because they were “not consistent with the 19 current record, as a whole, given later-received evidence available at the hearing level establishing 20 medically determinable/severe mental impairment and associated limitations that are not work- 21 preclusive given generally normal memory, concentration, behavior, and mood, and hallucinations 22 controlled with medication.”4 (AR 23 (citing AR 493, 497, 505, 515, 523, 540, 615, 656).) 23 At the hearing, Plaintiff’s attorney requested a consultative examination to “give a full 24 vocational measure of his condition.” (AR 35; see also AR 298.) The ALJ denied the request. (AR 25 17.) No such evaluation or examination was ever conducted, and there was no other opinion evidence 26 27 4 Under the regulations regarding the evaluation of medical evidence, the ALJ must evaluate the “persuasiveness” of a 28 medical opinion by considering the following factors: supportability, consistency, treatment relationship, specialization, 1 of Plaintiff’s functioning in the record.5 Thus, the ALJ’s RFC determination concerning the severity 2 of Plaintiff’s schizoaffective disorder and its resulting functional limitations appears to have been 3 based solely on their review of the medical evidence and Plaintiff’ subjective complaints, which is 4 improper. The ALJ was not qualified to translate the evidence into functional limitations and engage 5 in their “own exploration and assessment” of Plaintiff’s impairments. See McAnally v. Berryhill, 6 Case No.: 3:18-cv-02272-GPC-RNB, 2020 WL 1443734, at *7 (S.D. Cal. Mar. 25, 2020) (quoting 7 Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)). 8 The Commissioner is correct that “ALJs are, at some level, capable of independently 9 reviewing and forming conclusions about medical evidence to discharge their statutory duty to 10 determine whether a claimant is disabled and cannot work.” (Doc. 16 at 10–11 (quoting Farlow v. 11 Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022)). However, an ALJ is not permitted to render their own 12 medical opinions or independently assess clinical findings. Tackett, 180 F.3d at 1102–03 (“It is well- 13 settled that an ALJ may not render [their] own medical opinion and is not empowered to 14 independently assess clinical findings.”); Miller v. Astrue, 695 F.Supp.2d 1042, 1048 (C.D. Cal. 15 2010) (concluding that an ALJ may not act as their own medical expert); Banks v. Barnhart, 434 16 F.Supp.2d 800, 805 (C.D. Cal. 2006) (citing Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“[the 17 ALJ] must not succumb to the temptation to play doctor and make [their] own independent medical 18 findings.”)). Ninth Circuit courts have found that “barring a few exceptions, an ALJ must have a 19 doctor’s opinion of a claimant’s functional capacity in order for there to be substantial evidence 20 supporting the decisions.” Bradford v. Comm’r of Soc. Sec. Admin., No. CV-21-00232-TUC-SHR 21 (JR), 2022 WL 4538569, at *5 (D. Ariz. Aug. 18, 2022); (quoting Howell v. Kijakazi, No. 20-CV- 22 2517-BLM, 2022 WL 2759090, at *7 (S.D. Cal. July 14, 2022)); Walker v. Comm’r of Soc. Sec., Case 23 No. 2:22-cv-01871-EJY, 2024 WL 64784, at *6 (D. Nev. Jan. 4, 2024) (“While the ALJ ‘can pick 24 and choose between opinions expressed by the experts,’ when an ALJ decides severity or residual 25 functional capacity ‘without the support of any of the medical opinion evidence,’ this is error.”) 26 5 The Commissioner blames Plaintiff’s “failure to cooperate with agency requests for information” for the lack of a 27 consultative examination. (Doc. 16 at 8.) But, as Plaintiff points out, the Commissioner cites no authority for the proposition that a claimant’s failure to submit an adult function report, for example, results in the denial of a consultative 28 examination. The undersigned declines to fault Plaintiff for failing to submit certain information about his functioning 1 (quoting Holtan v. Kijakazi, 2:22-cv-01222-VCF, 2023 WL 2424648, at *3 (D. Nev. Mar. 9, 2023)). 2 When there is ambiguous evidence or when the record is inadequate to allow for proper evaluation 3 of the evidence, the ALJ has a duty to develop the record irrespective of whether the claimant is 4 represented by counsel. Ford, 950 F.3d at 1156 (quoting Mayes v. Massanari, 276 F.3d 453, 459-60 5 (9th Cir. 2001)). 6 The absence of a medical opinion is not necessarily fatal, but the RFC determination still must 7 be supported by substantial evidence. Tackett, 180 F.3d at 1102–03. This Court is mindful that the 8 ALJ, not this Court, is responsible for resolving conflicts in the evidence and that “[a]n ALJ’s duty 9 to develop the record further is triggered only when there is ambiguous evidence or when the record 10 is inadequate to allow for proper evaluation of the evidence.” Mayes, 276 F.3d at 459–60. Further, 11 an ALJ is not automatically obliged to order an independent evaluation/examination upon the request 12 of Plaintiff’s attorney. See Pederson v. Colvin, 31 F. Supp. 3d 1234, 1244 (E.D. Wash. 2014) (“[T]he 13 Commissioner ‘has broad latitude in ordering a consultative examination.’”) (quoting Reed v. 14 Massanari, 270 F.3d 838, 842 (9th Cir. 2001)). However, in this case, the ALJ was obliged to 15 exercise caution because “no doctor or other medical expert opined, on the basis of a full review of 16 all relevant records,” that Plaintiff could perform work during the relevant period, even with the 17 limitations recognized by the ALJ. See Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014) 18 (holding that ALJ “should have exercised caution because “no doctor or other medical expert . . . 19 opined, on the basis of a full review of all relevant records, that [Plaintiff] is capable of working or is 20 prepared to return to work”) (citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989)). 21 In fact, the only “opinions” in the record were that the evidence was insufficient to render an 22 opinion and thus did not constitute opinion evidence at all. It is therefore not entirely clear how the 23 ALJ translated the medical evidence into an RFC. The treatment records cited by the ALJ do not 24 provide sufficient indications of Plaintiff’s functional limitations. They establish Plaintiff was 25 assessed with a “mood disorder,” “auditory hallucinations,” “forgetfulness,” “adjustment disorder 26 with “depression and anxiety,” “psychosis,” and “schizoaffective disorder” (see AR 493, 498, 505, 27 28 1 517, 524, 540, 616, 662), but do not indicate the functional limitations caused by such assessments.6 2 See Hurt v. Kijakazi, No. 3:20-CV-00481-CSD, 2022 WL 444355, at *9–10 (D. Nev. Feb. 14, 2022) 3 (“When the ‘medical findings in the record merely diagnose [the] claimant’s . . . impairments and do 4 not relate those diagnoses to specific residual functional capabilities . . . [the] bare medical findings 5 are unintelligible to a lay person in terms of residual functional capacity.’”) (quoting Rosado v. Sec’y 6 of Health & Human Servs., 807 F.2d 292, 293 (1st Cir. 1986)). 7 The ALJ was required to obtain a medical expert opinion to allow for a proper evaluation of 8 Plaintiff’s capabilities after concluding that Plaintiff suffered from a severe impairment, but did not 9 do so here. Thus, the record was absent any medical opinion concerning Plaintiff’s functioning and 10 the ALJ failed to develop the record. Lacking any medical opinions, the ALJ relied on their own 11 interpretation of the medical records in formulating the RFC. In so doing, the ALJ improperly acted 12 as their own medical expert by assigning RFC limitations without any medical opinion of Plaintiff’s 13 functioning. Accordingly, the Court is unable to conclude that the RFC was supported by substantial 14 evidence. See Holtan, 2023 WL 2424648, at *3 (finding that the ALJ erred primarily by simply 15 summarizing the medical evidence without making it clear how the ALJ then translated that evidence 16 into an RFC, noting that it was “particularly concerning because the ALJ did not rely on any of the 17 medical opinions, finding all of the medical opinions of record unpersuasive.”) (emphasis in original); 18 see also Lorali N. T. v. Kijakazi, Case No. 4:22-cv-00234-CWD, 2023 WL 3548221, at *10 (D. Idaho 19 May 18, 2023) (collecting cases in the Ninth Circuit where courts routinely find error when an ALJ 20 rejects all medical source opinions and formulates an RFC based on the ALJ’s own interpretation of 21 the medical record.). 22 6More problematic, it appears that the ALJ impermissibly cherry-picked notations from the record to support their 23 conclusion that Plaintiff’s mental impairment is not “work-preclusive” (AR 23). See Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (an ALJ must not “cherry-pick” certain observations without considering their context); see also 24 Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016) (quoting Tackett, 180 F.3d at 1098) (the Court “cannot affirm . . . ‘simply by isolating a specific quantum of supporting evidence,’ but ‘must consider the record as a whole, weighing 25 both evidence that supports and evidence that detracts’). The ALJ found that treatment notes showed “normal memory, concentration, behavior, and mood, and hallucinations controlled with medication.” (AR 22, 23 (citing AR 493, 497, 26 505, 515, 523, 540, 615, 656).) But the record—including the same treatment notes on which the ALJ relies— undermines the ALJ’s finding, showing “memory issues” (AR 497); the hearing of “inaudible voices” (AR 504); a 27 “referral for anger management treatment” (AR 508); “guarded” and “irritable” presentation (AR 514, 656); “restricted” affect, “irritable” mood, and auditory and visual hallucinations (AR 516); “hear[ing] voices” and “paranoia” (AR 522, 28 540, 614); “irritable” mood” (AR 524); “auditory hallucinations” (AR 527); and reports that Plaintiff, despite 1 This Court finds this was harmful error necessitating remand. Tommasetti, 533 F.3d at 1038 2 (ALJ error is harmless if it is “inconsequential to the ultimate nondisability determination.”). While 3 the ALJ purports to have assessed limitations “to account for [Plaintiff’s] mental impairments” (AR 4 23), the RFC is still without supporting evidence. Had the ALJ included different limitations in the 5 RFC based upon a proper review of the evidence and an adequate record, the ultimate disability 6 determination may have been different.7 See Clarenda A. S. v. O’Malley, No. 1:24-CV-00127-DKG, 7 2024 WL 4851214, at *5 (D. Idaho Nov. 21, 2024) (finding harmful error where the ALJ relied on 8 her own interpretation of the medical records without any medical opinion of Plaintiff's functioning 9 in formulating the RFC). 10 In a case where the ALJ’s determination is not supported by substantial evidence or is tainted 11 by legal error, the court may remand the matter for additional proceedings or an immediate award of 12 benefits. Remand for additional proceedings is proper where (1) outstanding issues must be resolved, 13 and (2) it is not clear from the record before the court that a claimant is disabled. See Benecke v. 14 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 15 Here, the undersigned finds that remand for further proceedings, as requested by Plaintiff (see 16 Doc. 13 at 16), is warranted. See Osborne v. Commissioner of Soc. Sec., No. 1:22-CV-01538-EPG, 17 2024 WL 1312202, at *5 (E.D. Cal. Mar. 27, 2024) (remanding for further proceedings where the 18 ALJ relied on their own judgment in assessing the RFC without the support of any medical opinion 19 evidence). On remand, the Commissioner shall further develop the record, as outlined above, to allow 20 for proper consideration of the medical evidence related to the period at issue. 21 B. The Court Declines to Determine Plaintiff’s Remaining Assertion of Error 22 As the undersigned finds that remand is appropriate for further development of the record, 23 it does not reach Plaintiff’s additional assertion of error directed to his subjective symptom 24 complaints, which were discounted because they were inconsistent with and/or unsupported by that 25 undeveloped record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand 26 the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for 27

28 7 This is not to say that the disability determination will or should be different, only that the undersigned cannot 1 remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2 2008) (“[The] Court need not address the other claims plaintiff raises, none of which would provide 3 plaintiff with any further relief than granted, and all of which can be addressed on remand.”). 4 V. FINDINGS AND RECOMMENDATIONS 5 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 6 1. Plaintiff’s motion for summary judgment (Doc. 13) be GRANTED; 7 2. The final decision of the Commissioner of Social Security be REVERSED; 8 3. This matter be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for 9 further proceedings consistent with this decision; and 10 4. The Clerk of Court be DIRECTED to enter judgment in favor of Plaintiff Brian 11 Adrian Millner, and against Defendant Commissioner of Social Security, and to 12 CLOSE this action. 13 These findings and recommendations are submitted to the District Judge assigned to this 14 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) 15 days of service of these recommendations, any party may file written objections to these findings and 16 recommendations with the Court and serve a copy on all parties. Such a document should be 17 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 18 The District Judge will review the Magistrate Judge’s findings and recommendations pursuant 19 to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 20 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 21 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23

24 Dated: May 27, 2026 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 25

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