1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 CLIOFAS YBARRA GONZALEZ, Case No. 1:25-cv-0041-JLT-EGC
8 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT BE GRANTED AND THE ACTION BE 10 REMANDED TO THE COMMISSIONER FOR FURTHER PROCEEDINGS 11 FRANK BISIGNANO, Commissioner of Social Security1 12 (Doc. 1) Defendant. 13
14 15 _______________________________________/ 16 I. INTRODUCTION 17 Plaintiff Cliofas Ybarra Gonzalez (“Plaintiff”) seeks judicial review of a final decision of 18 the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his 19 application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) 20 under the Social Security Act (the “Act”). (Doc. 1). The matter is currently before the Court on 21 the parties’ briefs, which were submitted, without oral argument, to the Honorable Erin E. Guy 22 Castillo, United States Magistrate Judge.2 23 For the reasons set forth below, the undersigned recommends that Plaintiff’s motion for 24 summary judgment be granted and that the action be remanded to the Commissioner for further 25
26 1 On May 7, 2025, Frank Bisignano was named Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42 27 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in [their] official capacity, be the proper defendant.”). 28 2 The matter is referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Cal. Local 1 proceedings. 2 II. BACKGROUND 3 Plaintiff was born in 1972. (Administrative Record (“AR”) 383). He earned a GED. (AR 4 425). Plaintiff filed an application for DIB and SSI, alleging He became disabled on November 1, 5 2019. (AR 383). 6 A. Relevant Evidence of Record3 7 On August 29, 2023, Dr. L. Faurbo, Psy.D. completed a comprehensive clinical 8 psychological evaluation, including a “medical source statement.” (AR. 856−60). The medical 9 source statement reflects Dr. Faurbo’s opinion that Plaintiff was “moderately limited” “due to 10 cognitive and functional deficits associated with a mood disorder” as to his ability to (1) “understand, 11 remember, and perform complex detailed written and oral instructions;” (2) “maintain[] regular 12 attendance in the workplace,” (3) “perform work activities without special or additional 13 supervision,” (4) “complete a normal workday or workweek without interruptions resulting from the 14 claimant’s psychiatric condition,” (5) accept instructions from supervisors,” (6) “interact with 15 coworkers and with the public,” and (7) “deal with the usual stresses encountered in competitive 16 work environment.” (AR 860). 17 B. Administrative Proceedings 18 The Commissioner denied Plaintiff’s application for benefits initially on January 10, 2023, 19 and again on reconsideration on October 11, 2023. (AR 266–90). Consequently, Plaintiff requested 20 a hearing before an Administrative Law Judge (“ALJ”). (AR 291). The ALJ conducted a hearing 21 on March 19, 2024. (AR 152–84). Plaintiff appeared at the hearing with his attorney and testified 22 as to his alleged disabling conditions and work history. (AR 155–75). 23 A Vocational Expert (“VE”) also testified at the hearing. (AR 175–184). In relevant part, 24 the VE testified that “if a person were only productive four to six hours a day because of chronic 25 fatigue, pain, inability to concentrate, focus, and/or get along with others,” any such person “would 26 not be able to perform any work at all.” (AR 182). Likewise, the VE testified that a person off task 27
28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 15 percent of the time would not be able to maintain full-time employment. (AR 183−84). 2 Additionally, the VE testified that a person absent two or more days a month would “not be 3 competitive [in the market].” (AR 182−83). 4 The ALJ’s Decision 5 In a decision dated June 28, 2024, the ALJ found that Plaintiff was not disabled. (AR 131– 6 51). The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 7 136–42). The ALJ decided that Plaintiff had not engaged in substantial gainful activity since 8 November 9, 2019. (AR 136). At step two, the ALJ found Plaintiff’s following impairments to be 9 severe: disorder of the bilateral hands, respiratory disorder, depression, and psychosis. (AR 136– 10 37). The ALJ then determined that Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 12 Subpart P, Appendix 1 (“the Listings”) (step three). (AR 137–38). 13 The ALJ assessed Plaintiff’s residual functional capacity (RFC)4 and applied the assessment 14 at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, 15 we assess your residual functional capacity . . . . We use this residual functional capacity assessment 16 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined 17 that Plaintiff had the following RFC: 18 [T]o perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can frequently climb, stoop, kneel, crouch, and crawl, but no climbing 19 ladders, rope, or scaffolds. The claimant can have no jobs that require excellent to good balance like working at unprotected heights. He can have no concentrated 20 exposure to fumes, dust, chemicals or work environments with poor ventilation. He can have no forceful gripping or torquing with the bilateral upper extremities. He 21 can have frequent bilateral handling and overhead reaching. In addition, he is limited to simple noncomplex tasks in a static work environment where the tasks 22 to be performed as well as the physical surroundings remain the same from day to day. The claimant can have occasional tasks that require teamwork and direction 23 from supervisors should be direct and concrete. He can have brief and infrequent contact with the public. Furthermore, the claimant would work best in 24
25 4 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 eight hours a day, for five days a week, or an equivalent work schedule. 26 TITLES II & 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 27 from an individual’s 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 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 minimal social contacts with others that do not require a great deal of decision making, problem solving or goal setting. 2 (AR 138–139; see also id. 138–42). Although the ALJ recognized that Plaintiff’s impairments 3 “could reasonably be expected to cause the alleged symptoms,” the ALJ rejected Plaintiff’s 4 subjective testimony as to “the intensity, persistence and limiting effects of these symptoms” as 5 being “not entirely consistent with the medical evidence and other evidence in the record.” (AR 6 142). 7 The ALJ then determined that Plaintiff had no past work experience (step four) but that, 8 given his RFC, he could perform a significant number of jobs in the national economy (step five). 9 (AR 143–44). In making this determination, the ALJ relied on the VE’s answers to a series of 10 hypothetical questions the ALJ posed to the VE during the hearing. (AR 175–83). The VE testified 11 that a person with the RFC specified above could perform the jobs of routing clerk, or housekeeper 12 cleaner. (AR 177–83). The ALJ ultimately concluded Plaintiff was not disabled at any time after 13 November 1, 2019, the alleged onset date. (AR 144). 14 Plaintiff sought review of this decision before the Appeals Council, which denied review on 15 November 13, 2024. (AR 1–7). Therefore, the ALJ’s decision became the final decision of the 16 Commissioner. 20 C.F.R. § 404.981. 17 III. LEGAL STANDARD 18 A. Applicable Law 19 An individual is considered “disabled” for purposes of disability benefits if [they are] unable 20 “to engage in any substantial gainful activity by reason of any medically determinable physical or 21 mental impairment which can be expected to result in death or which has lasted or can be expected 22 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 23 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 24 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 25 work but cannot, considering [their] age, education, and work experience, engage in any other kind 26 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 27 “The Social Security Regulations set out a five-step sequential process for determining 28 1 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 2 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the 3 following description of the sequential evaluation analysis: 4 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 5 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 6 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 7 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 8 not, the ALJ 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 9 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the 10 claimant is not disabled. If not, the claimant is disabled. 11 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 12 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 13 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 14 “The claimant carries the initial burden of proving a disability in steps one through four of 15 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 16 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 17 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 18 Id. (citing Swenson, 876 F.2d at 687). 19 B. Scope of Review 20 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 21 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 22 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is ‘more than 23 a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might accept as 24 adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consol. 25 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Ford v. Saul, 950 F.3d 1141, 1154 (9th 26 Cir. 2020). 27 “This is a highly deferential standard of review.” Valentine v. Comm’r of Soc. Sec. Admin., 28 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by inferences 1 reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 2 (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the evidence 3 is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. Massanari, 253 F.3d 4 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one rational interpretation, 5 the court may not substitute its judgment for that of the Commissioner.” (citations omitted)). 6 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 7 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 8 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 9 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 10 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 11 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 12 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 13 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 14 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti, 15 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he 16 burden of showing that an error is harmful normally falls upon the party attacking the agency’s 17 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 18 IV. DISCUSSION 19 Plaintiff asserts two claims of error: the ALJ failed to (1) formulate an RFC supported by 20 substantial evidence as the RFC has discrepancies with the opinion evidence and (2) either include 21 work-related limitations consistent with Plaintiff’s limitations or offer clear and convincing evidence 22 for rejecting Plaintiff’s subjective complaints. (See Doc. 13 at 10–17). The Commissioner counters 23 that (1) the ALJ’s RFC determination reasonably accounted for medical opinion evidence and (2) 24 ALJ reasonably discounted Plaintiff’s symptom allegations because of the inconsistencies between 25 his claims and other record evidence. (Doc. 15 at 3–12). 26 The undersigned agrees with Plaintiff that the assessed RFC is not supported by substantial 27 evidence, as the ALJ did not adequately address whether and how the assessed RFC accounts for 28 1 credited medical opinion evidence regarding moderate limitations in Plaintiff’s functioning.5 2 A. Legal Standard 3 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record.” 4 Robbins, 466 F.3d at 883. “[A]n RFC that fails to take into account a claimant’s limitations is 5 defective.” Valentine, 574 F.3d at 690. 6 “Where an ALJ accords substantial or great weight to a physician’s opinion, he must either 7 incorporate their findings into the RFC or offer an explanation for why he chose not to accept them.” 8 Sahyoun v. Saul, No. 2:18-CV-576-EFB, 2020 WL 1492661, at *3 (E.D. Cal. Mar. 27, 2020); see 9 also Martin v. Comm’r of Soc. Sec. Admin., 472 F. App’x 580 (9th Cir. 2012) (“The administrative 10 law judge (ALJ) erred when formulating Martin’s residual functional capacity (RFC) because the 11 RFC neither incorporated Dr. Steiner’s opinion of Martin’s work limitations nor gave specific and 12 legitimate reasons for rejecting it.”); Neufeld v. Berryhill, No. 2:16-cv-03644, 2018 WL 4739699, at 13 *6 (C.D. Cal. Sept. 30, 2018) (“Having afforded ‘great weight’ to the opinions of Dr. Bartell and Dr. 14 Loomis, the ALJ was bound to either incorporate their findings as to Plaintiff’s limitations or explain 15 why she decided not to accept them.”); Bain v. Astrue, 319 F. App’x 543, 545−46 (9th Cir. 2009) 16 (holding ALJ erred in not including consultative examining psychologist’s moderate limitations in 17 the RFC, despite specifically crediting these limitations in the opinion); Flores v. Saul, No. 1:18-cv- 18 01523-SKO, 2020 WL 509098, at *5 (E.D. Cal. Jan. 31, 2020) (finding ALJ erred by assigning great 19 weight to consultative psychologist’s opinion, but failing to provide specific and legitimate reasons 20 for rejecting significant portions of the opinion); Wascovich v. Saul, No. 2:18-cv-659-EFB, 2019 21 WL 4572084, at *3−5 (E.D. Cal. Sept. 20, 2019) (finding ALJ erred by assigning substantial weight 22 to consulting examiner’s opinion that the plaintiff had a mild to moderate impairment in her capacity 23 to maintain regular attendance, but failed to account for the limitation in the RFC); Harrell v. 24
25 5 Because further proceedings will necessitate the re-evaluation of the evidence as a whole, see infra, the undersigned recommends not reaching the issue of the ALJ’s treatment of Plaintiff’s subjective symptoms. See Hiler v. Astrue, 687 26 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”); see also Rendon G. v. Berryhill, No. EDCV 18-0592-JPR, 2019 WL 27 2006688, at *8 (C.D. Cal. May 7, 2019); Harris v. Colvin, No. 13-cv-05865 RBL, 2014 WL 4092256, at *4 (W.D. Wash. Aug. 11, 2014); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] 28 Court need not address the other claims plaintiff raises, none of which would provide plaintiff with any further relief 1 Kijakazi, No. 1:20-cv-00614-GSA, 2021 WL 4429416, at *4 (E.D. Cal. Sept. 27, 2021) (“The ALJ 2 was under no obligation to accept a medical opinion he found unsupported by the record. But, 3 having clearly stated that he was according [the physician]’s opinion great weight, the ALJ was 4 under an obligation to account for the moderate limitations [the physician] identified irrespective of 5 the broader reasoning in support of the RFC.”). An ALJ errs when they do not explain why they did 6 not adopt all findings or limitations from a persuasive opinion. Patterson v. Comm’r of Social Sec., 7 No. 2:23-cv-00635 AC, 2024 WL 4216810, at *8 (E.D. Cal. Sept. 17, 2024). 8 In examining whether RFC limitations account for some opined non-exertional limitations, 9 courts in this circuit have split on whether RFC limitations to simple/routine tasks with limited public 10 contact account for all moderate non-exertional limitations. Macias v. Saul, No. 1:19-cv-01187- 11 BAM, 2021 WL 856423, at *6 (E.D. Cal. Mar. 8, 2021) (collecting cases and noting that “Courts 12 have rejected the argument that a similar limitation to simple tasks in the RFC adequately accounts 13 for moderate limitations in the ability to maintain regular attendance or complete a normal 14 workday.”). Courts within this district have recently noted that the district court case law “tends to 15 favor the view that a restriction to simple/routine tasks with limited public contact does not account 16 for the moderate limitations . . . identified in interacting with supervisors and peers, handling work 17 related stressors, maintaining regular attendance, and completing a normal workweek without 18 interruption.” Harrell, 2021 WL 4429416, at *6; Lamar v. Comm’r of Soc. Sec., No. 1:24-cv-00504- 19 EPG, 2025 WL 318294, at *4 (E.D. Cal. Jan. 28, 2025) (noting split and finding that limitations in 20 RFC did not account for all moderate limitations opined by physician); Berenisia Madrigal v. Saul, 21 No. 1:18-cv-01129-SKO, 2020 WL 58289, at *5−6 (E.D. Cal. Jan. 6, 2020) (finding that ALJ’s RFC 22 of simple, routine tasks with limited peer and public contact did not account for opined limitations 23 in “completing a normal workday or work week due to her psychiatric condition, moderate 24 difficulties dealing with stress and changes encountered in the workplace, and an up to moderate 25 likelihood that she would emotionally deteriorate in a work environment”). 26 B. Analysis 27 In a August 29, 2023 medical source statement based on a comprehensive clinical 28 psychological evaluation, Dr. L. Faurbo, Psy.D, noted moderate limitations in Plaintiff’s ability to 1 (1) understand, carry out, apply, and remember, complex detailed written and oral instructions; (2) 2 maintain regular attendance in the workplace, (3) perform work activities without special or 3 additional supervision; (4) complete a normal workday or workweek without interruptions; (5) 4 accept instructions from supervisors; (5) interact with coworkers and with the public; and (6) deal 5 with the usual stresses encountered in competitive work environments. (AR 860). 6 In evaluating the opinion of Dr. Faurbo, the ALJ reasoned as follows: 7 In addition, Dr. Faurbo, Psy.D., a mental medical examiner, found moderate type limitations in concentration, persistence, and pace, social functioning, and work 8 adaptability. The assessment indicated moderate type findings in this are persuasive, as it is supported by the mental status examination, observations, and psychological 9 history and treatment. Furthermore, the assessment is mostly consistent with the claimant’s mood complaints, mental symptoms, mental status examinations, 10 psychotropic management, and his activities of daily living in the relevant periods. 11 (AR 142 (internal citations omitted)). Based in part on Dr. Faurbo’s opinion, the ALJ determined 12 that Plaintiff retained 13 the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can frequently climb, stoop, kneel, 14 crouch, and crawl, but no climbing ladders, rope, or scaffolds. The claimant can have no jobs that require excellent to good balance like working at unprotected 15 heights. He can have no concentrated exposure to fumes, dust, chemicals or work environments with poor ventilation. He can have no forceful gripping or torquing 16 with the bilateral upper extremities. He can have frequent bilateral handling and overhead reaching. In addition, he is limited to simple noncomplex tasks in a static 17 work environment where the tasks to be performed as well as the physical surroundings remain the same from day to day. The claimant can have occasional 18 tasks that require teamwork and direction from supervisors should be direct and concrete. He can have brief and infrequent contact with the public. Furthermore, 19 the claimant would work best in environments with predictable work tasks, minimal changes in schedule and with minimal social contacts with others that do not require 20 a great deal of decision making, problem solving or goal setting. 21 (AR 138−39). 22 The question before the Court “is whether the ALJ, having accepted [Dr. Faurbo’s] opinion, 23 appropriately translated the moderate limitations from that opinion into concrete restrictions in the 24 RFC.” Harrell, 2021 WL 4429416, at *6−7; see also id. (“But, having clearly stated that he was 25 according Dr. Stafford’s opinion great weight, the ALJ was under an obligation to account for the 26 moderate limitations Dr. Stafford identified irrespective of the broader reasoning in support of the 27 RFC.”). In answering this question, the undersigned is mindful that an ALJ’s RFC findings need 28 only be consistent with assessed limitations and not identical to them. See Turner v. Comm’r of Soc. 1 Sec., 613 F.3d 1217, 1222−23 (9th Cir. 2010); Wascovich, 2019 WL 4572084, at *5 (“This does not 2 necessarily mean that the ALJ was required to explicitly transcribe the limitation in the RFC. Rather, 3 he is required to account for it in his ‘translation.’”); Rounds v. Comm’r of Soc. Sec. Admin., 807 4 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible for translating and incorporating clinical 5 findings into a succinct RFC.”); Ashlock v. Kijakazi, No. 1:21-cv-01687-GSA, 2022 WL 2307594, 6 at *3 (E.D. Cal. June 27, 2022) (“The RFC need not mirror a particular opinion; it is an assessment 7 formulated by the ALJ based on all relevant evidence.”). Here, however, the undersigned finds that 8 the RFC did not completely address or account for the opined limitations in Dr. Faurbo’s persuasive 9 opinion regarding Plaintiff’s functional limitations. 10 As an initial matter, the limitations included in the RFC—to simple noncomplex tasks in a 11 static work environment where the tasks to be performed as well as the physical surroundings remain 12 the same from day to day; only occasional tasks requiring teamwork and only brief and infrequent 13 interactions with the public; direction from supervisors being direct and concrete; and the 14 acknowledgement that Plaintiff would work best in environments with predictable work tasks, 15 minimal changes in schedule with minimal social contacts with others that do not require a great 16 deal of decision making, problem solving or goal setting—clearly and adequately addressed Dr. 17 Faurbo’s opinions that Plaintiff had a moderately limited ability to understand, remember, and 18 perform complex instructions, accept instructions from supervisors, and to interact with co-workers 19 and the public. (AR 22, 860). 20 But Dr. Faurbo also noted moderate limitations in Plaintiff’s ability to perform work 21 activities without special or additional supervision, complete a normal workday or workweek 22 without interruption resulting from his psychiatric condition, and deal with the usual stressors 23 encountered in a competitive work environment. (AR 860). And it is not clear from the ALJ’s 24 opinion if—and if so, how—the ALJ may have incorporated Dr. Faurbo’s credited medical opinion 25 regarding these functional limitations into the assessed RFC. 26 The Commissioner contends that the rest of Dr. Faurbo’s opined limitations are accounted 27 for by the assessed RFC. (Doc.15 at 4−7). The undersigned disagrees. 28 First, the Commissioner maintains that the RFC adequately accounted for all of Plaintiff’s 1 “moderate” limitations considering that a “moderate” limitation in the context of Dr. Faurbo’s 2 evaluation could reasonably have been understood as meaning “more than a slight limitation,” but 3 that Plaintiff “could still function satisfactorily.” (Id. at 6 (quoting Tamra W. v. O’Malley, 2024 WL 4 283684, at *6 (C.D. Cal. Jan. 25, 2024)). However, in formulating an RFC, the ALJ must account 5 for all of a claimant’s medically determinable impairments, including those that are not “severe,” 6 and evaluate “all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(1); Valentine, 7 574 F.3d 690 (an RFC that “fails to take into account a claimant’s limitations is defective”). 8 Therefore, an ALJ errs when, as here, an ALJ provides an incomplete RFC ignoring “significant and 9 probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161−62 (9th Cir. 2012). Here, the ALJ 10 generally credited Dr. Faurbo’s opinion and incorporated other moderate limitations into the 11 assessed RFC. However, the ALJ did not address Dr. Faurbo’s opinion as to several assessed 12 moderate limitations by either translating this opined limitation into the RFC or explaining why the 13 ALJ declined to credit Dr. Faurbo’s opinion as to this limitation (AR 393)—this was error, see 14 Macquarrie v. Comm’r of Soc. Sec., No. 1:21-CV-00072-CDB, 2023 WL 8242069, at *7 (E.D. Cal. 15 Nov. 28, 2023). 16 Second, the Commissioner contends that it was not error for the ALJ to not expressly address 17 Dr. Faurbo’s opinion regarding Plaintiff’s moderate impairment as to attendance and completing a 18 normal workday and work week without psychiatric interruptions, because (1) those limitations “do 19 not lend themselves to qualitative descriptions,” (Doc. 15 at 5 (quoting Xiong v. Kijakazi, 2022 WL 20 2119029, at *15 (E.D. Cal. June 13, 2022)), (2) Dr. Faurbo did not “provide specific attendance 21 restrictions,” (id. at 5−6 (quoting Tamra W., 2024 WL 283684, at 5)), and (3) because Plaintiff did 22 not advance a theory as to how these limitations should have been translated into the RFC, (id. at 5). 23 The undersigned acknowledges that the case law within the district courts in this circuit is 24 split on this issue. See Tamra W., 2024 WL 283684 at *4−5 (collecting cases to demonstrate the 25 division in district courts as to whether a moderate attendance limitation is adequately addressed by 26 a limitation to simple, repetitive tasks). Upon a review of the case law, the undersigned agrees that 27 recent district court case law “tends to favor the view that a restriction to simple/routine tasks with 28 limited public contact does not account for the moderate limitations . . . identified in interacting with 1 supervisors and peers, handling work related stressors, maintaining regular attendance, and 2 completing a normal workweek without interruption.” Lamar, 2025 WL 318294, at *4 (noting split 3 and finding that limitations in RFC did not account for all moderate limitations opined by physician); 4 Ramirez v. Kijakazi, No. 1:22-cv-00445-GSA, 2023 WL 4409853, at *5 (E.D. Cal. July 7, 2023) 5 (“The case law in this circuit in split but tends to favor the view that a restriction to simple/routine 6 tasks is not a catchall and does not account for all moderate limitations.”); Harrell, 2021 WL 7 4429416, at *6; Berenisia Madrigal, 2020 WL 58289, at *5−6 (finding that ALJ’s RFC of simple, 8 routine tasks with limited peer and public contact did not account for opined limitations in 9 “completing a normal workday or work week due to her psychiatric condition, moderate difficulties 10 dealing with stress and changes encountered in the workplace, and an up to moderate likelihood that 11 she would emotionally deteriorate in a work environment”). Therefore, the undersigned finds that 12 while the Commissioner may be correct that an opinion of a “moderate” limitation in mental 13 functioning, without more specific and quantified restrictions, need not always translate to any 14 specific attendance limitation in the residual functional capacity, (Doc. 15 at 15), here the ALJ failed 15 to incorporate multiple limitations included in a credited medical opinion into the RFC that directly 16 related to a significant issue—namely, plaintiff's ability to work consistently and without special 17 supervision. And due to that failure, the undersigned finds that the ALJ’s RFC finding is 18 unsupported by substantial evidence. See Gowan v. Comm’r of Soc. Sec., No. 1:23-cv-00598-DAD- 19 AC, 2024 WL 3372470, at *3 (E.D. Cal. July 11, 2024) (“[T]he RFC’s restriction to ‘simple, routine 20 and repetitive tasks’ did not account for [moderate] limitations to plaintiff’s ability to maintain 21 attendance and to perform work activities without additional or special supervision.”); Donald J. M. 22 v. O’Malley, No. 22-cv-1926-MMP, 2024 WL 1342573, at *14-17 (S.D. Cal. Mar. 29, 2024) (finding 23 that the ALJ’s RFC limiting plaintiff to simple, routine tasks and no interaction with the public failed 24 to account for the plaintiff’s moderate limitations in maintaining regular attendance in the workplace, 25 in performing work activities on a consistent basis, and in performing work activities without special 26 or additional supervision); Christopher G. v. Saul, No. 2:19-cv-06150-AFM, 2020 WL 2079972, at 27 *6 (C.D. Cal. Apr. 30, 2020) (RFC that the plaintiff could “perform work involving simple, routine 28 tasks with limited public and co-worker interaction” failed to address moderate limitation in 1 maintaining regular attendance, completing a normal workday or workweek, or in performing at a 2 consistent pace without an unreasonable number and length of rest periods); Sahyoun, , 2020 WL 3 1492661, at *4 (RFC limiting the plaintiff to simple, repetitive tasks and no more than occasional 4 interaction with supervisors, coworkers and public did not adequately capture moderate limitations 5 in maintaining regular attendance, completing a normal workday or work week without interruption 6 from a psychiatric condition, and handling normal work-related stress); Cummings v. Berryhill, No. 7 5:17-cv-00056-AS, 2018 WL 813620, at *1, 3 (C.D. Cal. Feb. 9, 2018) (ALJ’s RFC determination 8 limiting the plaintiff to work involving simple, routine tasks, a non-public environment, and non- 9 intense interaction with coworkers and supervisors failed to take into account that plaintiff was 10 “moderately limited in his ability to perform work activities without additional or special 11 supervision, to complete a normal workday or workweek without interruption resulting from any 12 psychiatric conditions, and to deal with the usual stresses encountered in competitive work”). 13 Third, the Commissioner contends that Dr. Faurbo’s opinion regarding Plaintiff’s moderate 14 impairment as to dealing with stress was adequately accounted for by various components of the 15 RFC, in particular, the limitation to simple repetitive tasks. (Doc. 15 at 6 (citing Garza v. Comm’r 16 of Soc. Sec., 2022 WL 2974691, at *11 (E.D. Cal. July 27, 2022); Kimball v. Comm’r of Soc. Sec., 17 2022 WL 17343820, at *7 (E.D. Cal. Nov. 30, 2022)). However, again the undersigned finds that 18 “the weight of more recent case law [ ] tends to refute the argument that a limitation to simple, 19 routine tasks in the RFC adequately accounts for moderate limitations in the ability to complete a 20 normal workday and the ability to handle stress.” Macquarrie, 2023 WL 8242069, at *6; Slover v. 21 Kijakazi, No. 1:21-cv-01089-ADA-BAM, 2023 WL 5488416, at *4 (E.D. Cal. Aug. 24, 2023); 22 Ramirez, 2023 WL 4409853, at *5 (explaining that “case law in this circuit is split but tends to favor 23 the view that a restriction to simple/routine tasks is not a catchall and does not account for all 24 moderate limitations”); Harrell, 2021 WL 4429416, at *7 (collecting cases); Berenisia Madrigal, 25 2020 WL 58289, at *5 (finding that a restriction to simple, routine tasks does not account for mental 26 limitations in the ability to complete a normal workday or workweek without interruptions from a 27 psychiatric condition and the ability to deal with stress and changes encountered in the workplace); 28 Sahyoun, 2020 WL 1492661, at *4 (rejecting argument that the RFC determination that plaintiff 1 could sustain work involving simple, repetitive tasks adequately captured moderate limitations in 2 maintaining regular attendance, completing a normal workday or work week without interruption 3 from a psychiatric condition, and handling normal work-related stress). Therefore, the undersigned 4 finds that the ALJ’s decision to limit Plaintiff to unskilled work consisting of simple, routine tasks 5 did not adequately address or account for Dr. Faurbo’s moderate limitations as to Plaintiff's ability 6 to deal with the usual stress encountered in the workplace. 7 Finally, while the Commissioner points to the ALJ’s inclusion of limitations in the RFC to 8 address Dr. Faurbo’s credited opinion that Plaintiff had moderate limitations as to Plaintiff’s “ability 9 to accept instructions from supervisors,” (AR 860, see Doc. 15 at 6), the Commissioner does not 10 address Plaintiff’s argument that the ALJ failed to address the separate limitation assessed by Dr. 11 Faurbo that Plaintiff was moderately limited as to Plaintiff’s “ability to perform work activities 12 without special or additional supervision,” (AR 860). The undersigned finds that this too was error 13 as district courts have consistently held that a limitation to simple, repetitive tasks does not account 14 for a need for additional supervision. See Proulx v. Kijakazi, No. 18cv1755 JAH-BGS, 2023 WL 15 5737785, at *6 (S.D. Cal. Sept. 5, 2023) (holding that a limitation to simple routine tasks did not 16 provide for the plaintiff’s moderate limitations in the ability to “perform work activities without 17 special or additional supervision”); Davis v. Saul, No. 20cv814-BLM, 2021 WL 2333256, at *10 18 (S.D. Cal. June 7, 2021) (concluding that the ALJ erred by failing to include in the RFC or 19 hypotheticals that the plaintiff was moderately limited in her ability to perform work activities or an 20 ordinary routine without special supervision or to obtain testimony or other evidence establishing 21 that the limitation language utilized by the ALJ captured the restrictions identified in the medical 22 evidence); Donna M. v. Saul, No. 19-cv-03134-DMR, 2020 WL 6415601, at *4 (N.D. Cal. Nov. 2, 23 2020) (finding limitation to simple, routine tasks in RFC did not address other moderate limitations, 24 including the plaintiff’s ability to perform work activities on a consistent basis without special or 25 additional supervision.); Lisardo S. v. Berryhill, Case No. 5:18-cv-00480-AFM, 2019 WL 773686, 26 at *5 (C.D. Cal. Feb. 20, 2019) (finding the ALJ’s RFC restricting the plaintiff to simple work with 27 a predictable work routine and no more than simple decision making did not accommodate the 28 plaintiff’s moderately limited ability to perform work without special or additional supervision.); 1 No. 22-CV-02051-LL-JLB, 2023 WL 8676095, at *17 (S.D. Cal. Dec. 15, 2023), report & 2 recommendation adopted sub nom. Seth D. v. O’Malley, No. 22CV2051-LL-JLB, 2024 WL 130762 3 (S.D. Cal. Jan. 11, 2024) (“[I]n the RFC, the ALJ did not incorporate Dr. Nicholson’s opinion that 4 Plaintiff’s ability to perform work activities without special or additional supervision would be 5 moderately limited. As such, the undersigned finds that the ALJ’s error with respect to this opinion 6 is not harmless. The requirement that an ALJ articulate his reasoning on both supportability and 7 consistency is to allow a subsequent reviewer to trace the path of the adjudicator’s reasoning, and 8 the Court cannot do so here.”); see also Jonathan D. v. O’Malley, No. 23-CV-1697-AJB-JLB, 2024 9 WL 3494359, at *5 (S.D. Cal. July 22, 2024); Jeremy S. v. O'Malley, No. 23-CV-00184-AJB-JLB, 10 2024 WL 343179, at *22 (S.D. Cal. Jan. 29, 2024), report & recommendation adopted, No. 23-CV- 11 00184-AJB-JLB, 2024 WL 5705635 (S.D. Cal. Mar. 15, 2024). 12 Because the ALJ credited Dr. Faurbo’s medical source statement, the undersigned finds that 13 the ALJ needed to address either (1) how the ALJ translated Dr. Faurbo’s assessment of these 14 limitations into the RFC, or (2) why the ALJ did not translate this part of Dr. Faurbo’s assessed 15 adaptive limitation into the RFC. See Stubbs, 539 F.3d at 1174. Absent an explanation for failing 16 to account for these limitations, the ALJ’s RFC determination is not supported by substantial 17 evidence. See Christopher S. Z. v. O’Malley, No. 2:23-CV-09446-DTB, 2024 WL 6916748, at *4 18 (C.D. Cal. Oct. 15, 2024); Sahyoun, 2020 WL 1492661, at *3; Robbins, 466 F.3d at 886 (“an ALJ 19 is not free to disregard properly supported limitations”); Warren v. Saul, No. 8:19-CV-02270-PD, 20 2021 WL 259435, at *6 (C.D. Cal. Jan. 26, 2021); Byrd v. Colvin, 2017 WL 980559, at *8 (D. Or. 21 Mar. 14, 2017) (“Here, the ALJ gave great weight to [the] opinion, but the RFC failed to take into 22 account all of the limitations identified by [the doctor], and the ALJ failed to explain why she did 23 not include the limitations in the RFC. As a result, the ALJ erred in formulating the RFC.”); Wiles 24 v. Berryhill, No. 2:16-cv-09558-GJS, 2017 WL 5186333, at *3 (C.D. Cal. Nov. 8, 2017). 25 Accordingly, the undersigned finds that the ALJ’s RFC determination is not supported by 26 substantial evidence. 27 C. Harmlessness Review 28 The undersigned must now consider whether the ALJ’s error was harmless. Molina, 674 1 F.3d at 1115. Courts look to the record as a whole to determine whether the error alters the outcome 2 of the case. Id.; March v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). An error is harmless “where 3 it is inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115 4 (citations omitted) (first quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998), and then quoting 5 Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)). 6 The undersigned cannot conclude that the error is harmless as it is not clear whether inclusion 7 of the unaddressed moderate limitations as opined by Dr. Faurbo would have eliminated available 8 jobs. Moderate limitations are not per se disabling, but they may translate into more concrete work 9 restrictions. See Macquarrie, 2023 WL 8242069, at *7. For example, the VE testified that “if a 10 person were only productive four to six hours a day because of chronic fatigue, pain, inability to 11 concentrate, focus, and/or get along with others,” any such person “would not be able to perform 12 any work at all.” (AR 182). Likewise, the VE testified that a person off task 15 percent of the time 13 would not be able to maintain full-time employment. (AR 183−84). Additionally, the VE testified 14 that a person absent two or more days a month would “not be competitive [in the market].” (AR 15 182−83). 16 Had the ALJ included different limitations in the RFC based upon a proper review of the 17 evidence, the ultimate disability determination may have been different.6 Because the undersigned 18 cannot find that the error was “inconsequential to the ultimate nondisability determination,” the 19 undersigned recommends that this matter be remanded to the Commissioner for further 20 administrative proceedings. Molina, 674 F.3d at 1115. 21 D. Remand 22 In a case where the ALJ’s determination is not supported by substantial evidence or is tainted 23 by legal error, the court may remand the matter for additional proceedings or an immediate award 24 of benefits. Remand for additional proceedings is proper where (1) outstanding issues must be 25 resolved, and (2) it is not clear from the record before the court that a claimant is disabled. See 26 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 27
28 6 This is not to say that the disability determination will or should be different regarding the period at issue--only that 1 Here, the undersigned finds that remand for further proceedings is warranted. See, □□□□ 2 | Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (affirming a remand for further proceedings 3 | where the ALJ failed to explain with sufficient specificity the basis for rejecting the claimant's 4 | testimony); Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995) (remanding the case “for further 5 | findings evaluating the credibility of [the claimant’s] subjective complaints”). On remand, the 6 | Commissioner shall reconsider all of the evidence in formulating Plaintiff?s RFC. 7 V. CONCLUSION AND ORDER 8 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 9 1. Plaintiff's motion for summary judgment, (Doc. 13), be GRANTED; 10 2. This matter be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for 11 further proceedings consistent with this decision; and 12 3. The Clerk of the Court be DIRECTED to enter judgment in favor of Plaintiff Cliofas 13 Ybarra Gonzalez and against Defendant Frank Bisignano, Commissioner of Social 14 Security, and to CLOSE this action. 15 These findings and recommendations are submitted to the District Judge assigned to this 16 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 17 | (14) days of service of these recommendations, any party may file written objections to these 18 | findings and recommendations with the Court and serve a copy on all parties. Such a document 19 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 20 The District Judge will review the Magistrate Judge’s findings and recommendations 21 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 22 | the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 23 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 IT IS SO ORDERED. . 26 | Dated: _May 21, 2026 Cx tin duc | □□□ (le 4 UNITED STATES MAGISTRATE JUDGE