Hannah Joy Bethell v. Frank Bisignano, Commissioner of Social Security

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 HANNAH JOY BETHELL, Case No. 1:25-cv-00502-EGC

8 Plaintiff,

9 ORDER ON PLAINTIFF’S SOCIAL v. SECURITY COMPLAINT 10

11 FRANK BISIGNANO, Commissioner of Social Security1 (Doc. 1) 12

13 Defendant. 14 _____________________________________/ 15 I. INTRODUCTION 16 Plaintiff Hannah Joy Bethell (“Plaintiff”) seeks judicial review of a final decision of the 17 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for 18 disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social 19 Security Act (the “Act”). (Doc. 1). The matter is currently before the Court on the parties’ briefs, 20 which were submitted, without oral argument, to the Honorable Erin E. Guy Castillo, United States 21 Magistrate Judge.2 22 II. BACKGROUND 23 Plaintiff was born in 1989. (Administrative Record (“AR”) 265). She obtained her GED. 24 (AR 64). Plaintiff filed an application for DIB and SSI, alleging she became disabled on January 1, 25 26 1 On May 7, 2025, Frank Bisignano was named Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant.”). 1 2016. (AR 265–75). 2 A. Relevant Evidence of Record3 3 On March 19, 2021, after performing a mental status examination, psychological consultative 4 examiner Charles DeBattista, MD4 issued a report. (AR 1990–95). That report reflects Dr. 5 DeBattista’s opinion that Plaintiff’s ability to maintain concentration and attention, persistence and 6 pace is “moderately impaired.” (AR 1992). Dr. DeBattista also opined that Plaintiff’s ability to 7 associate with day-to-day work activity, including attendance and safety, as well as to maintain 8 regular attendance in the workplace and perform work activities on a consistent basis are 9 “moderately impaired.” (Id.) 10 B. Administrative Proceedings 11 The Commissioner denied Plaintiff’s application for benefits initially on June 5, 2019, and 12 again on reconsideration on September 27, 2019. (AR 108–27). Consequently, Plaintiff requested 13 a hearing before an Administrative Law Judge (“ALJ”). (AR 148). The ALJ conducted a hearing 14 on January 24, 2024. (AR 2025–62). Plaintiff appeared at the hearing with her attorney and testified 15 as to her alleged disabling conditions and work history. (AR 2029–56). 16 A Vocational Expert (“VE”) also testified at the hearing. (AR 2056–61). In relevant part, 17 the VE testified that being off task four percent of the time would be “pretty insignificant” and not 18 preclusive of competitive work, while being off task twenty percent of a workday would be a “big 19 difference” and preclusive of competitive work. (AR 2059). 20 C. The ALJ’s Decision 21 In a decision dated April 3, 2024, the ALJ found that Plaintiff was not disabled. (AR 2000– 22 15). The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 23 2003–15). The ALJ decided that Plaintiff had not engaged in substantial gainful activity since 24 February 27, 2019. (AR 2003). At step two, the ALJ found Plaintiff’s following impairments to be 25 severe: HIV, obesity, major depressive disorder, posttraumatic stress disorder (PTSD), and social 26

27 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the contested issues. 28 4 While the ALJ’s decision refers to this doctor as “Dr. Battisa,” (AR 2011), the record reflects his name is Dr. 1 anxiety disorder. (AR 2003–04). The ALJ then determined that Plaintiff did not have an impairment 2 or combination of impairments that met or medically equaled one of the listed impairments in 20 3 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 2004–07). 4 The ALJ assessed Plaintiff’s residual functional capacity (RFC)5 and applied the assessment 5 at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, 6 we assess your residual functional capacity . . . . We use this residual functional capacity assessment 7 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined 8 that Plaintiff had the following RFC: 9 [T]o perform light work as defined in 20 CFR 416.967(b) except the claimant should avoid hazards such as unprotected heights and moving machinery. The 10 claimant could understand, remember and carry out simple work instructions and have occasional interaction with coworkers. The claimant should have no 11 interaction with the public except for incidental and superficial interaction. The claimant can deal with occasional changes in a routine work environment. The 12 claimant would be off task 4% of the month. 13 (AR 2007; see also id. 2007–13). Although the ALJ recognized that Plaintiff’s impairments “could 14 reasonably be expected to cause the alleged symptoms,” the ALJ rejected Plaintiff’s subjective 15 testimony as to “the intensity, persistence and limiting effects of these symptoms” as being “not 16 entirely consistent with the medical evidence and other evidence in the record.” (AR 2008). 17 The ALJ then determined that Plaintiff could not perform her past relevant work (step four) 18 but that, given her RFC, she could perform a significant number of jobs in the national economy 19 (step five). (AR 2013–15). In making this determination, the ALJ relied on the VE’s answers to 20 a series of hypothetical questions the ALJ posed to the VE during the hearing. (AR 2014–15). The 21 VE testified that a person with the RFC specified above could perform the jobs of price marker, 22 routing clerk, or housekeeping cleaner. (AR 2057–59). The ALJ ultimately concluded Plaintiff 23 was not disabled at any time after February 27, 2019, the alleged onset date. (AR 2015). 24

25 5 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 Plaintiff sought review of this decision before the Appeals Council, which denied review on 2 April 4, 2022. (AR 2–7). Therefore, the ALJ’s decision became the final decision of the 3 Commissioner. 20 C.F.R. § 404.981. 4 III. LEGAL STANDARD 5 A. Applicable Law 6 An individual is considered “disabled” for purposes of disability benefits if [they are] unable 7 “to engage in any substantial gainful activity by reason of any medically determinable physical or 8 mental impairment which can be expected to result in death or which has lasted or can be expected 9 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 10 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 11 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 12 work but cannot, considering [their] age, education, and work experience, engage in any other kind 13 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 14 “The Social Security Regulations set out a five-step sequential process for determining 15 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 16 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the 17 following description of the sequential evaluation analysis: 18 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 19 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 20 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. 21 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 22 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 23 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 24 claimant is not disabled. If not, the claimant is disabled. 25 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 26 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 27 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 28 “The claimant carries the initial burden of proving a disability in steps one through four of 1 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 2 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 3 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 4 Id. (citing Swenson, 876 F.2d at 687). 5 B. Scope of Review 6 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 7 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 8 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is ‘more than 9 a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might accept as 10 adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consol. 11 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Ford v. Saul, 950 F.3d 1141, 1154 (9th 12 Cir. 2020). 13 “This is a highly deferential standard of review.” Valentine v. Comm’r of Soc. Sec. Admin., 14 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by inferences 15 reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 16 (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the evidence 17 is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. Massanari, 253 F.3d 18 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one rational interpretation, 19 the court may not substitute its judgment for that of the Commissioner.” (citations omitted)). 20 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 21 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 22 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 23 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 24 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 25 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 26 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 27 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 28 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti, 1 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he 2 burden of showing that an error is harmful normally falls upon the party attacking the agency’s 3 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 4 IV. DISCUSSION 5 Plaintiff asserts three claims of error: the ALJ erred by (1) failing to comply with a prior 6 remand order from the Appeals Council, (2) formulating an RFC that is unsupported by substantial 7 evidence due to a failure to properly evaluate the medical opinions of record, and (3) failing to either 8 include work-related limitations consistent with Plaintiff’s limitations or offer clear and convincing 9 evidence for rejecting Plaintiff’s subjective complaints. (See Doc. 15 at 4–16). The Commissioner 10 counters that the ALJ (1) complied with the Appeals Council’s remand order, (2) reasonably found 11 the opinion of Plaintiff’s primary care physician unpersuasive, and (3) formulated an RFC supported 12 by substantial evidence. (Doc. 19 at 2–12). The Court agrees with Plaintiff that the ALJ’s evaluation 13 of a medical opinion of record is not supported by substantial evidence.6 14 A. Legal Standard 15 Plaintiff’s claim is governed by the agency’s revised regulations concerning how ALJs must 16 evaluate medical opinions for claims filed on or after March 27, 2017. 20 C.F.R. § 404.1520c. The 17 regulations set “supportability” and “consistency” as “the most important factors” when 18 determining the opinions’ persuasiveness. 20 C.F.R. § 404.1520c(b)(2). And although the 19 regulations eliminate the “physician hierarchy,” deference to specific medical opinions, and 20 assigning “weight” to a medical opinion, the ALJ must still “articulate how [they] considered the 21 medical opinions” and “how persuasive [they] find all of the medical opinions.” 20 C.F.R. § 22 404.1520c(a)–(b). 23 The Ninth Circuit has issued the following guidance regarding treatment of physicians’ 24

25 6 Because further proceedings will necessitate the re-evaluation of the evidence as a whole, see infra, the Court does not reach the issue of the ALJ’s treatment of Plaintiff’s subjective symptoms or the ALJ’s compliance with the Appeals 26 Council’s remand order. See Hiler v. Astrue, 687 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. 27 v. Berryhill, No. EDCV 18-0592-JPR, 2019 WL 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. 28 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other claims plaintiff raises, none of which 1 opinions after implementation of the revised regulations: 2 The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on 3 account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We will not defer or give any specific evidentiary weight, including controlling weight, 4 to any medical opinion(s) . . . , including those from your medical sources.”). Our 5 requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or examining doctor’s opinion, which stems from the special weight given 6 to such opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when 7 discrediting evidence from certain sources necessarily favors the evidence from 8 those sources—contrary to the revised regulations. 9 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Accordingly, under the new regulations, “the 10 decision to discredit any medical opinion, must simply be supported by substantial evidence.” Id. 11 at 787. 12 In conjunction with this requirement, “[t]he agency must ‘articulate . . . how persuasive’ it 13 finds ‘all of the medical opinions’ from each doctor or other source, and ‘explain how [it] 14 considered the supportability and consistency factors’ in reaching these findings.” Id. at 792 (citing 15 20 C.F.R. § 404.1520c(b)). “Supportability means the extent to which a medical source supports 16 the medical opinion by explaining the ‘relevant . . . objective medical evidence.’” Id. at 791–92 17 (quoting 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion 18 is ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the 19 claim.’” Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). 20 As the Ninth Circuit also observed, The revised regulations recognize that a medical source’s relationship with the 21 claimant is still relevant when assessing the persuasiveness of the source’s opinion. 22 See id. § 404.1520c(c)(3). Thus, an ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of 23 examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the 24 claimant’s records. Id. § 404.1520c(c)(3)(i)–(v). However, the ALJ no longer needs to make specific findings regarding these relationship factors. 25 26 Id. at 792. “A discussion of relationship factors may be appropriate when ‘two or more medical 27 opinions . . . about the same issue are . . . equally well-supported . . . and consistent with the record 28 . . . but are not exactly the same.’” Id. (quoting § 404.1520c(b)(3)). “In that case, the ALJ ‘will 1 articulate how [the agency] considered the other most persuasive factors.’” Id. Finally, if the 2 medical opinion includes evidence on an issue reserved to the Commissioner, the ALJ need not 3 provide an analysis of the evidence in their decision, even in the discussions required by 20 C.F.R. 4 § 404.1520c. See 20 C.F.R. § 404.1520b(c)(3). 5 With these legal standards in mind, the Court reviews the weight given to Dr. DeBattista 6 opinions. 7 B. Analysis 8 Starting with the medical opinion at issue, the record reflects that consultative examiner Dr. 9 DeBattista opined that Plaintiff's ability to maintain concentration and attention, persistence and pace 10 is “moderately impaired.” (AR 1992). Dr. DeBattista also opined that Plaintiff’s ability to associate 11 with day-to-day work activity, including attendance and safety, as well as to maintain regular 12 attendance in the workplace and perform work activities on a consistent basis are “moderately 13 impaired.” The ALJ found Dr. DeBattista’s opinions only “minimally persuasive” for several 14 reasons, each of which are not supported by substantial evidence. 15 First, the ALJ stated that Dr. DeBattista’s opinion was “only minimally persuasive as it is 16 based upon a one-time examination of the claimant’s functioning.” (AR 2011). Defendant notably 17 does not attempt to defend this reason. (See Doc. 19 at 2–5). The Court agrees with Plaintiff that it 18 was unreasonable for the ALJ to reject Dr. DeBattista’s opinion because he only saw Plaintiff one 19 time. If this reason was enough, an ALJ would be free to reject every consultative examining 20 doctor’s opinion because they generally only see claimants once. This Court agrees with other courts 21 that have rejected similar reasoning. See, e.g., Daniel H. v. Comm'r of Soc. Sec., C19-6147-BAT, 22 2020 WL 7054308 at *2 (W.D. Wash. Dec. 2, 2020); Amber L. B. v. Comm'r of Soc. Sec., No. 2:21- 23 CV-01358-JRC, 2022 WL 1134881, at *5 (W.D. Wash. Apr. 15, 2022). R.K. v. Kijakazi, No. 21- 24 CV-01764-VKD, 2023 WL 2393783, at *7 (N.D. Cal. Mar. 6, 2023) (“The fact that [the consultative 25 examiner] conducted a one-time examination is not, in itself, a legitimate basis to discount an 26 opinion; that “rationale would render all examining opinions superfluous, and is contrary to the 27 requirement that the ALJ consider all relevant evidence, including medical opinions of examining 28 doctors.’” (quoting Brown v. Berryhill, No. 17-cv-02834-JCS, 2018 WL 4700348, at *17 (N.D. Cal. 1 Sept. 29, 2018))). 2 Second, the ALJ stated that Dr. DeBattista’s “opinion as to the claimant’s ability to associate 3 with day-to-day work activity, including attendance and safety, and ability to maintain regular 4 attendance in the workplace and perform work activities on a consistent basis is not persuasive, as 5 the claimant has only moderate limitation in adaptation or managing oneself.” (AR 2011). And 6 more broadly, the ALJ asserted that “[n]otably, the psychologist noted no more than moderate 7 limitations in any area.” (Id.). But in formulating an RFC, the ALJ must account for all of a 8 claimant’s medically determinable impairments, including those that are not “severe,” and evaluate 9 “all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(1); Valentine, 574 F.3d 10 690 (an RFC that “fails to take into account a claimant’s limitations is defective”). Therefore, an 11 ALJ errs where, as here, an ALJ provides an incomplete RFC ignoring “significant and probative 12 evidence.” Hill v. Astrue, 698 F.3d 1153, 1161−62 (9th Cir. 2012). Indeed, it is not clear how Dr. 13 DeBattista’s opinion that Plaintiff was only moderately impaired as Plaintiff’s to ability to associate 14 with day-to-day work activity, including attendance and safety, as well as her ability to maintain 15 regular attendance in the work place and perform work activities on a consistent basis is inconsistent 16 with the ALJ’s assertion that Plaintiff was only “moderately limited” as to adapting and managing 17 herself. Nor is it clear the relevance of the ALJ’s assertion that Dr. DeBattista only assessed 18 moderate impairments. The Court cannot find that these reasons to reject Dr. DeBattista’s opinion 19 are supported by substantial evidence. 20 Finally, the ALJ asserts that “Plaintiff was cooperative and well groomed, made good eye 21 contact and had no history of avoiding hazards.” (AR 2011). While the Court assumes this statement 22 is intended to go to the issue of consistency, the ALJ does not draw a logical bridge between the 23 evidence cited and the medical opinion being evaluated. See Crystal O. v. Kijakazi, No. 3:20-CV- 24 06011-TLF, 2021 WL 5774395, at *2 (W.D. Wash. Dec. 3, 2021) (“the ALJ must build an accurate 25 and logical bridge from the evidence to their conclusions”); see also Brown-Hunter v. Colvin, 806 26 F.3d 487, 492 (9th Cir. 2015) (observing that an ALJ must give a “clear statement of the agency’s 27 reasoning”); Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (An ALJ errs when he or she 28 “merely states” that facts “point toward an adverse conclusion” yet “makes no effort to relate any of 1 these” facts to “the specific medical opinions and findings he rejects.”). Without more, the Court 2 this reason does not provide substantial evidence to support the ALJ’s discrediting of Dr. Battista’s 3 opinion. 4 Therefore, the Court finds that the ALJ erred in failing to provide sufficient reasons, 5 supported by substantial evidence, for discounting Dr. DeBattista’s opinion. 6 C. Harmlessness Review 7 The Court must now consider whether the ALJ’s error was harmless. Molina, 674 F.3d at 8 1115. Courts look to the record as a whole to determine whether the error alters the outcome of the 9 case. Id.; March v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). An error is harmless “where it is 10 inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115 (citations 11 omitted) (first quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998), and then quoting Rohan 12 v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)). 13 Defendant argues that any error in the ALJ’s evaluation of Dr. DeBattista is harmless because 14 the ALJ incorporated all of Dr. DeBattista’s assessed limits into the RFC even though the ALJ 15 rejected parts of Dr. DeBattista’s opinion. (Doc. 19 at 3). The Court disagrees. 16 While it is true that the ALJ did incorporate a limitation as to time off task, that limitation 17 was explicitly to account for Plaintiff’s alleged physical limitations associated with her epilepsy and 18 HIV. (AR 2010 (“To the extent that [Plaintiff] experiences brief seizures up to a few minutes with 19 two hours recovery time once every month or two, the undersigned finds that 4% off task sufficiently 20 addresses the reported symptoms. Limitation to light exertion will sufficiently accommodate the 21 claimant’s fatigue from epilepsy and symptoms related to HIV and treatment.”)). The ALJ explicitly 22 rejected Dr. DeBattista’s “opinion as to the claimant’s ability to associate with day-to-day work 23 activity, including attendance and safety, and ability to maintain regular attendance in the workplace 24 and perform work activities on a consistent basis” as it related to Plaintiff’s psychological and mental 25 limitations. The Court cannot conclude that the error is harmless because if the ALJ had credited 26 Dr. DeBattista’s opinion as to Plaintiff’s moderate impairments that would have potentially resulted 27 in greater functional limitations assessed and reflected in the RFC, which may have in turn affected 28 the ultimate disability determination in light of the VE’s testimony that while a limitation to off task 1 | four percent of the time was “pretty insignificant” and would allow Plaintiff to perform the identified 2 | jobs in the national economy, if Plaintiff were off task 20% of the time, Plaintiff would be unable tc 3 | perform any work. (AR 2059).’ 4 In sum, the Court cannot say that the error was not “inconsequential to the ultimate 5 | nondisability determination.” Molina, 674 F.3d at 1115. 6 | D. Remand 7 In a case where the ALJ’s determination is not supported by substantial evidence or is taintec 8 | by legal error, the court may remand the matter for additional proceedings or an immediate award 9 | of benefits. Remand for additional proceedings is proper where (1) outstanding issues must be 10 | resolved, and (2) it is not clear from the record before the court that a claimant is disabled. See 11 | Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 12 Here, the Court finds that remand for further proceedings is warranted. See, e.g., Bunnell v. 13 | Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (affirming a remand for further proceedings where the 14 | ALJ failed to explain with sufficient specificity the basis for rejecting the claimant's testimony): 15 | Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995) (remanding the case “for further finding: 16 | evaluating the credibility of [the claimant’s] subjective complaints”). On remand, the Commissionet 17 | shall reevaluate the evidence as it relates to Plaintiff's RFC. 18 V. CONCLUSION AND ORDER 19 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 20 | substantial evidence and is therefore VACATED, and the case is REMANDED to the ALJ for 21 | further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter 22 | judgment in favor of Plaintiff Hannah Joy Bethell and against Defendant Frank Bisignano, 23 | Commissioner of Social Security. 24 25 IT IS SO ORDERED. . 26 | Dated: _ June 2, 2026 Cx tin duc | □□□ (le 4 UNITED STATES MAGISTRATE JUDGE

2g | 7 This is not to say that the disability determination will or should be different regarding the period at issue--only that the Court cannot determine the outcome would remain the same upon a correct evaluation of the record. 1]