Michelle V. v. Frank Bisignano, Commissioner of Social Security Administration

• Court: District Court, S.D. California
• Decided: June 29, 2026
• Docket: 3:25-cv-01863
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHELLE V., Case No.: 25-cv-1863-BJW

12 Plaintiff, ORDER REVERSING DENIAL OF 13 v. BENEFITS; REMANDING CLAIM; AND DIRECTING CLERK TO 14 FRANK BISIGNANO, Commissioner of ENTER JUDGMENT Social Security Administration, 15 Defendant. 16

18 19 Plaintiff Michelle V. seeks review of the Commissioner of Social Security 20 Administration’s (“SSA”) denial of her application for disability benefits. Dkt. No. 1. 21 Currently before the Court is Plaintiff’s Merits Brief, Defendant’s Responsive Brief, and 22 Plaintiff’s Reply. Dkt. Nos. 12, 15-16. For the reasons outlined below, the Court 23 REVERSES the SSA’s denial of benefits and REMANDS Plaintiff’s claim for further 24 administrative proceedings consistent with this opinion. 25 / / 26 / / 27 / / 28 / / 1 I. BACKGROUND AND PROCEDURAL HISTORY 2 On March 28, 2018, Plaintiff, who was born on June 27, 1980, filed a Title XVI 3 application for supplemental security income. AR 570-75.1 Plaintiff alleged she was 4 disabled as of April 1, 2017, and stopped working because of her medical condition. AR 5 570. The SSA denied the application initially and on reconsideration. AR 311-14, 324-27. 6 Plaintiff then requested an Administrative Law Judge (“ALJ”) hearing. AR 328-30. On 7 October 21, 2019, the ALJ dismissed her case after Plaintiff failed to respond to the SSA’s 8 efforts to notify her of the hearing or to appear for the hearing. AR 266-70. The Appeals 9 Counsel denied Plaintiff’s request for review of the dismissal [AR 271-73] and on April 6, 10 2020, Plaintiff appealed that decision to this District Court [AR 275-86; Michelle V. v. 11 Saul, No. 20-cv-0062-JM-KSC, Dkt. No. 1 (S.D. Cal. Apr. 6, 2020)]. On July 15, 2020, 12 the Court granted the parties’ joint motion to remand the case for further proceedings, 13 including an ALJ hearing. AR 290-91. The ALJ conducted the hearing on March 3, 2022. 14 AR 176-233. The ALJ found Plaintiff not disabled. AR 127-54. The Appeals Counsel 15 denied Plaintiff’s exceptions to the ALJ’s decision [AR 1-7], and this case followed [Dkt. 16 No. 1]. 17 II. THE ALJ’s DECISION 18 The ALJ followed the Commissioner’s five-step sequential evaluation process for 19 determining whether an applicant is disabled. 20 C.F.R. § 404.1520(a) (2012). 20 At step one the ALJ found Plaintiff had “not engaged in substantial gainful activity 21 since March 26, 2018.” AR 133. 22 At step two, the ALJ found Plaintiff had the following medically determinable 23 severe impairments: “schizoaffective disorder; posttraumatic stress disorder (‘PTSD’); 24

25 1 “AR” refers to the Administrative Record lodged on September 22, 2025. Dkt. No. 9. 26 The Court’s citations to the AR use the page numbers on the original document rather than 27 the page numbers assigned by the Court’s case management/electronic case filing system (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers affixed 28 1 methamphetamine dependence in remission; continuous and uncomplicated alcohol 2 dependence, now in sustained remission; continuous and uncomplicated stimulant 3 dependence, now in sustained remission; and major depressive disorder, recurrent, 4 moderate 20 C.F.R. § 404.1520(a).” AR 133. 5 At step three, the ALJ concluded Plaintiff’s impairments, whether considered alone 6 or in combination, do not meet or equal any of the relevant listings in the SSA’s Listing of 7 Impairments. AR 135-38. 8 Before proceeding to step four, the ALJ determined Plaintiff had the residual 9 functional capacity (“RFC”) “to perform a full range of work at all exertional levels but 10 with the following non-exertional limitations: the claimant can understand, remember and 11 carry out simple instructions; can tolerate occasional interaction with coworkers and 12 supervisors, but no interaction with the public; can tolerate occasional workplace changes; 13 and can have no ready access to alcohol at the worksite.” AR 139. 14 At step four, the ALJ concluded Plaintiff had no past relevant work. AR 144. 15 At step five, the ALJ accepted Vocational Expert (“VE”) opinion testimony and 16 concluded “there are jobs that exist in significant numbers in the national economy that the 17 [Plaintiff] can perform” including a Hand Packager (DOT #920.587-018); a 18 Housekeeper/Cleaner (DOT #323.687-014); or an Assembler of Small Parts (DOT 19 #706.684-022). AR 145. 20 III. STANDARD OF REVIEW 21 The Court reviews the ALJ’s decision to determine whether the ALJ applied the 22 proper legal standards and whether the decision is supported by substantial evidence. 23 42 U.S.C. § 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). 24 Substantial evidence is “such relevant evidence as a reasonable mind might accept as 25 adequate to support a conclusion.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 26 (quotations omitted), superseded by regulation on other grounds by 20 C.F.R. § 27 404.1502(a). It is “more than a mere scintilla, but less than a preponderance . . . .” Garrison 28 1 v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 2 1028, 1035 (9th Cir. 2007)). 3 The Court “must consider the entire record as a whole and may not affirm simply by 4 isolating a specific quantum of supporting evidence.” Ghanim v. Colvin, 763 F.3d 1154, 5 1160 (9th Cir. 2014) (citation modified). The Court may not impose its own reasoning to 6 affirm the ALJ’s decision. Garrison, 759 F.3d at 1010. “[I]f evidence exists to support 7 more than one rational interpretation, [then the Court] must defer to the [SSA]’s decision.” 8 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (citing Morgan 9 v. Comm’r of the SSA, 169 F.3d 595, 599 (9th Cir. 1999). The Court will not reverse the 10 ALJ’s decision if any error is harmless. See Marsh v. Colvin, 792 F.3d 1170, 1173 (2015) 11 (“ALJ errors in social security cases are harmless if they are inconsequential to the ultimate 12 nondisability determination and that a reviewing court cannot consider an error harmless 13 unless it can confidently conclude that no reasonable ALJ . . . could have reached a different 14 disability determination.”) (citation modified). 15 IV. DISCUSSION 16 Plaintiff argues the ALJ erred when he “improperly omitted significant medical 17 findings from [consulting examiner and Clinical Psychologist Jessica] Durr[, Ph.D.’s 18 opinion] in assessing the [RFC].” Dkt. No. 12 at 4. Specifically, Plaintiff contends that 19 while “the ALJ considered the medical opinion from Dr. Durr [to be] persuasive,” he failed 20 to consider “Dr. Durr opined that [Plaintiff’s] ‘ability to comply with job rules, such as 21 safety and attendance was moderately limited.’” Id. at 4-5, citing AR 139. Defendant 22 counters “[t]he ALJ properly translated Dr. Durr’s opinion into concrete functional 23 limitations in the RFC assessment” and, if the ALJ did err, such error was harmless. Dkt. 24 No. 15 at 2. 25 A. Background 26 At the SSA’s request, Dr. Durr reviewed Plaintiff’s treatment records and conducted 27 a consultative psychological evaluation on June 21, 2018. AR 950-55. She noted Plaintiff 28 was admitted to Alvarado Parkway Institute from February 22 to March 3, 2017, and her 1 discharge diagnosis was “bipolar disorder type I, current episode depressed, severe, 2 without psychotic features, secondary diagnosis malingering.” AR 951, citing AR 836-47. 3 Plaintiff’s main complaint was schizophrenia; however, she also complained of 4 bipolar symptoms, illiteracy, auditory and visual hallucinations and “hav[ing] to deal with 5 not cutting every day.” AR 951. She reported she was able to independently dress and bathe 6 herself but could not do any other tasks of daily living, such as making simple meals, 7 household chores, shopping, driving, using public transportation or managing her finances. 8 AR 953. 9 Dr. Durr noted Plaintiff was anxious with restless body movements and a congruent 10 affect; however, her eye contact was good. Id. She understood and answered questions, but 11 her effort appeared to be poor. Id. Her thought process was normal. Id. Plaintiff reported a 12 history of auditory and visual hallucinations, but Dr. Durr observed no evidence of either 13 during the exam. Id. Plaintiff reported seeing shadows and hearing voices but could not be 14 more specific. Id. She was alert and oriented in all spheres; could recall 3 of 3 objects 15 immediately; 0 of 3 objects after five minutes; what she had for breakfast; and her date of 16 birth. Id. Plaintiff could not perform serial sevens or serial threes or spell “cat,” but was 17 able to perform simple calculations. AR 954. 18 Dr. Durr diagnosed Plaintiff with a mood disorder, not otherwise specified; ruled out 19 malingering; and ruled out a psychotic disorder, not otherwise specified. Id. She estimated 20 Plaintiff’s “overall cognitive ability is . . . in the low average to borderline range.” AR 955. 21 Dr. Durr opined Plaintiff: “would be able to understand, remember and carry out short, 22 simplistic instructions;” had “a mild inability to understand, remember and carry out 23 detailed instructions;” “would be able to make simplistic work-related decisions without 24 special supervision;” was “moderately limited” in “her ability to comply with job rules, 25 such as safety and attendance;” was “mildly limited” in her “ability to respond to changes 26 in a routine work setting;” was “mildly limited” in her “ability to respond to work pressure 27 in a usual work setting;” had “a mild inability to interact appropriately with supervisors, 28 1 co-workers and peers;” and she did not “appear to be able to manage finances on her own 2 behalf.” Id. 3 The ALJ found Dr. Durr’s opinion to be “persuasive” and “consistent with her own 4 findings . . . as well as other evidence in [Plaintiff’s] medical records as a whole.” AR 139. 5 The ALJ then determined Plaintiff had the RFC “to perform a full range of work at all 6 exertional levels but with the following non-exertional limitations: the claimant can 7 understand, remember and carry out simple instructions; can tolerate occasional interaction 8 with coworkers and supervisors, but no interaction with the public; can tolerate occasional 9 workplace changes; and can have no ready access to alcohol at the worksite.” Id. 10 B. Relevant Law 11 The RFC is “an assessment of an individual’s ability to do sustained work-related 12 physical and mental activities in a work setting on a regular and continuing basis.” Social 13 Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1 (1996); 20 C.F.R. §§ 404.1545, 14 416.945 (2012). It reflects the most a claimant can do despite their limitations. SSR 96-8p, 15 1996 WL 374184, at *1; 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 16 In formulating the RFC, the ALJ must account for all the claimant’s medically 17 determinable impairments, including those that are not severe, and evaluate “all of the 18 relevant medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). If an 19 “RFC assessment failed to include all of [the claimant’s] credible limitations,” the RFC – 20 and any subsequent opinion of a vocational expert – are “incomplete.” Bagby v. Comm'r 21 Soc. Sec., 606 F. App’x 888, 890 (9th Cir. 2015); see also Valentine v. Comm'r Soc. Sec. 22 Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“[A]n RFC that fails to take into account a 23 claimant’s limitations is defective”); DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 24 1991) (An “expert’s testimony has no evidentiary value” if not based on “all of claimant’s 25 limitations.”). The Court should affirm the RFC assessment if the ALJ applied the proper 26 legal standard and the decision is supported by substantial evidence in the record. Bayliss, 27 427 F.3d at 1217. 28 / / 1 C. Analysis 2 Plaintiff contends that while “the ALJ considered the medical opinion from Dr. Durr 3 [to be] persuasive,” he erred by failing to incorporate her opinion that Plaintiff’s “ability to 4 comply with job rules, such as safety and attendance was moderately limited” in the RFC. 5 Dkt. No. 12 at 4-5, citing AR 139. The ALJ determined Plaintiff had the RFC: 6 [T]o perform a full range of work at all exertional levels but with the following non-exertional limitations: the claimant can understand, remember and carry 7 out simple instructions; can tolerate occasional interaction with coworkers and 8 supervisors, but no interaction with the public; can tolerate occasional workplace changes; and can have no ready access to alcohol at the worksite. 9

10 AR 139. Thus, on its face the RFC does not appear to reflect the full range of limitations 11 Dr. Durr set forth. 12 Defendant counters, however, the ALJ implicitly accounted for “Dr. Durr’s non- 13 specific functional limitation regarding Plaintiff’s ability to comply with job rules” in the 14 RFC as “Plaintiff would be able to understand, remember, and carry out short simplistic 15 instructions.” Dkt. No. 15 at 5. Defendant relies on Larkin v. Saul, 819 Fed. Appx. 535 (9th 16 Cir. 2020), Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), and derivative cases 17 to argue the ALJ’s RFC accounted for all Plaintiff’s limitations. Both cases involve 18 circumstances different from those presented here. 19 An ALJ’s RFC assessment may sufficiently account for a physician’s opinion 20 regarding limitations without using the same language as the physician. See Rounds v. 21 Comm'r of Soc. Sec. Admin, 807 F.3d 996, 1006 (9th Cir. 2015) (The RFC does not need 22 to directly correspond to a specific medical opinion; rather, “the ALJ is responsible for 23 translating and incorporating clinical findings into a succinct RFC.”); see also Stubbs- 24 Danielson, 539 F.3d at 1173-1174 (noting the ALJ’s responsibility to weigh conflicting 25 medical evidence and translate accepted medical opinions into “concrete restrictions”). For 26 example, an RFC may account for a physician’s opinion that the claimant suffers from 27 moderate difficulties in concentration and persistence by restricting the claimant to simple, 28 routine, repetitive tasks. Hughes v. Colvin, 599 F. App’x 765, 766 (9th Cir. 2015). 1 Similarly, an RFC for independent work with no more than occasional public interaction 2 adequately accommodates a physician’s opinion that the claimant is moderately limited in 3 social functioning. Hughes, 599 F. App’x at 766. 4 In Larkin, 819 F. App’x at 536-37, the Ninth Circuit Court of Appeals found a 5 medical opinion that claimant had “some limitation with keeping a regular workweek” was 6 properly accounted for in the RFC limiting her to “perform[ing] simple, routine tasks and 7 follow[ing] short, simple instructions” because the medical opinion qualified the limitation 8 by stating claimant also “retain[ed] the ability to follow through with routine tasks with 9 reasonable [concentration, persistence, and pace].” The record here is different; Dr. Durr 10 opined without any qualifier that Plaintiff’s “ability to comply with job rules, such as safety 11 and attendance was moderately limited” [AR 139]. See David S. v. Bisignano, No. 24-CV- 12 03193-ACE, 2026 WL 867764, at *9 (E.D. Wash. Mar. 30, 2026) (distinguishing Larkin 13 because “the medical opinion qualified the limitation” and finding ALJ error where the 14 RFC did not address “generally persuasive” medical opinions that plaintiff “may miss days 15 of work intermittently”). Moreover, whereas in Larkin the claimant had “some” limitation, 16 Dr. Durr described Plaintiff’s attendance limitation as “moderate,” which in the context of 17 disability benefits applications is semantically significant. See e.g. Macquarrie v. Comm'r 18 of Soc. Sec., No. 21-CV-00072-CDB, 2023 WL 8242069, at *7 (E.D. Cal. Nov. 28, 2023) 19 (“While moderate limitations are not per se disabling, they may translate into concrete 20 work restrictions, which when considered in connection with Plaintiff's other restrictions 21 may render the claimant disabled.”). 22 Stubbs-Danielson also does not address the situation here. See Peerzay v. Comm'r of 23 Soc. Sec., No. 23-CV-0728-SCR, 2025 WL 915574, at *5 (E.D. Cal. Mar. 26, 2024) 24 (distinguishing Stubbs-Danielson because it “did not address a situation where . . . an ALJ 25 fails to address at all specific record findings that a claimant has moderate limitations in 26 completing a workday and workweek.”); see also Warren v. Saul, 2021 WL 259435, at *5 27 (C.D. Cal. Jan. 26, 2021) (distinguishing Stubbs-Danielson and finding ALJ failed to 28 address medical opinion that plaintiff was moderately limited in ability to maintain regular 1 attendance, interact with a supervisor, or complete an eight-hour workday in RFC that 2 plaintiff could perform simple, repetitive tasks requiring only simple work-related 3 decisions and involving only occasional changes in a routine work setting, with unlimited 4 contact and interaction with supervisors but otherwise only occasional interaction with 5 coworkers). “Nor does there appear to be binding Ninth Circuit authority on this point.” 6 Peerzay, 2025 WL 915574, at *5. 7 Defendant also relies on cases where district courts found an ALJ implicitly included 8 attendance limitations in an RFC that limited the plaintiff to simple, repetitive, and/or 9 routine tasks. Dkt. No. 15 at 6; citing Braceson W. v. Frank Bisignano, No. 24-CV-01449- 10 SK, 2025 WL 3692142, at *2 (C.D. Cal. Aug. 26, 2025) (“[W]hile the RFC may not have 11 explicitly mentioned safety and attendance per se, the ALJ still adequately factored in those 12 moderate limits by limiting plaintiff to ‘simple, routine tasks in a low stress routine work 13 setting with few workplace changes and simple work-related decisions.’”); Alicia M. v. 14 O’Malley, No. 23-cv-1281-AJR, 2024 WL 3304519, at *8 (C.D. Cal. Mar. 8, 2024) 15 (finding RFC including “simple, routine and repetitive tasks”. . . “fairly and adequately 16 captured the moderate limitations in . . . complying in job rules such as safety and 17 attendance”); Rhonda E. G. v. Saul, No. 20-CV-1423-KES, 2021 WL 2262552, at *3 (C.D. 18 Cal. June 3, 2021) (rejecting plaintiff’s argument that medical opinion of mild or moderate 19 limitation in attendance was not sufficiently accommodated by RFC limiting plaintiff to 20 simple, repetitive, routine tasks). 21 However, “the weight of lower court authority . . . is that an ALJ errs by failing to 22 address or adequately explain moderate limitations on attendance or competition of a 23 workday/workweek.” Peerzay, 2025 WL 915574, at *5. Numerous courts in this Circuit, 24 including from this District, have found error where an ALJ credits a medical opinion 25 stating a claimant has moderate limitations in the ability to maintain regular attendance but 26 fails to include those limitations in the RFC or provide legally sufficient reasons for 27 rejecting them. See Donald J. M. v. O’Malley, No. 22-cv-1926-MMP, 2024 WL 1342573, 28 at *17 (S.D. Cal. Mar. 29, 2024) (finding accepted physician opinion claimant had 1 “moderate limitations in the ability to maintain regular attendance in the workplace and 2 perform work activities on a consistent basis, and in the ability to perform work activities 3 without special or additional supervision, [was not] adequately captured by [RFC] 4 restriction[] to simple, routine, unskilled work with additional social functioning 5 limitations”); see also Jeremy S. v. O’Malley, No. 23-cv-0184-AJB-JLB, 2024 WL 343179, 6 at *22 (S.D. Cal. Jan. 29, 2024) (collecting case and finding RFC limiting claimant to 7 “simple repetitive tasks” failed to address accepted medical opinion claimant had 8 “moderate limitations in maintaining regular attendance in the workplace, performing work 9 activities on a consistent basis, and performing work activities without special or additional 10 supervision”); Harrell v. Kijakazi, No. 20-cv-0614-GSA, 2021 WL 4429416, at *7 (E.D. 11 Cal. Sept. 24, 2021) (collecting cases and finding “[t]he weight of the more recent case law 12 tends to refute the notion that a limitation to simple/routine tasks with limited public 13 contact adequately accounts for other limitations in social interaction, maintaining 14 attendance, completing a normal workday without interruptions from a psychiatric 15 condition, and handling work related stressors”); Macias v. Saul, No. 19-cv-01187, 2021 16 WL 856423, at *5–6 (E.D. Cal. Mar. 8, 2021) (finding an ALJ’s RFC limitation to “simple 17 1 or 2 step tasks” did not adequately account for moderate limitations in maintaining 18 attendance, and distinguishing Stubbs-Danielson because the plaintiff’s moderate 19 restrictions “involve[d] limitations in maintaining attendance and completing a normal 20 workday, not limitations in concentration, persistence or pace”); Donna M. v. Saul, No. 19- 21 cv-2124-DMR, 2020 WL 6415601, at *4 (N.D. Cal. Nov. 20, 2020) (RFC “limitation to 22 “simple, routine tasks with no public interaction” does not address other moderate 23 limitations assessed by the physician, such as the “ability to relate to and interact with 24 coworkers, associate with day-to-day work activity, maintain regular attendance in the 25 workplace and perform work activities on a consistent basis, and perform work activities 26 without special or additional supervision.”); Christopher G. v. Saul, No. 19-cv-6150-AFM, 27 2020 WL 2079972, at *6 (C.D. Cal. Apr. 30, 2020) (“RFC [that claimant could] perform 28 work involving simple, routine tasks with limited public and co-worker interaction . . . 1 fairly accommodates moderate limitations in the ability to maintain attention and 2 concentration for extended periods and the ability to maintain socially appropriate behavior 3 . . . [but] does not . . . address moderate limitations in performing activities within a 4 schedule, maintaining regular attendance, and being punctual within customary tolerances 5 . . . [or] completing a normal workday or workweek or performing at a consistent pace 6 without an unreasonable number and length of rest periods.”); Panziera v. Berryhill, 2018 7 WL 278623, at *20 (N.D. Cal. Jan. 3, 2018) (rejecting the Commissioner’s reliance on 8 Stubbs-Danielson supported argument that moderate limitations in concentration, 9 persistence, or pace are adequately captured by an RFC limiting the claimant to simple, 10 repetitive tasks, and collecting cases for the proposition that “the Ninth Circuit and district 11 courts in the Ninth Circuit have held that Stubbs-Danielson does not control in cases where 12 the limitations relate to functional areas other than concentration, persistence, and pace, 13 such as social functioning and attendance”); Raymond v. Berryhill, No. 17-cv-1112-SHK, 14 2018 WL 3691842, at *6 (C.D. Cal. Aug. 2, 2018) (explaining while a restriction to 15 unskilled work “may encompass ... moderate limitations in concentration, persistence, and 16 pace,” it “does not sufficiently account for ... moderate limitations in performing routine 17 work duties and maintaining consistent attendance in the workplace”); Wiles v. Berryhill, 18 No. 16-cv-9558-GJS, 2017 WL 5186333, at *3 (C.D. Cal. Nov. 8, 2017) (finding accepted 19 physician opinion that claimant was moderately limited in her ability to perform work 20 activities consistently without special instructions and her ability to maintain regular 21 attendance and complete a normal workday without interruption were not adequately 22 accommodated by an RFC restricting her to “simple routine tasks with limited public 23 contact”) (citation modified); Padilla v. Colvin, No. ED CV 14-1843-PLA, 2015 WL 24 3849128, at *6 (C.D. Cal. June 22, 2015) (finding reversible error where ALJ afforded 25 physician’s opinion claimant had “moderate limitations in the ability to perform work 26 activities on a consistent basis without special or additional supervision, and to complete a 27 normal workday or work week due to her mental condition” “significant weight” but 28 “failed to explain why he apparently rejected and did not include [it] in the RFC 1 determination.”); Atkinson v. Colvin, No. EDCV 14-02337, 2015 WL 5840210, at *3 (C.D. 2 Cal. Oct. 5, 2015) (“Although the ALJ’s RFC restriction for non-complex tasks may 3 encompass the concentration, persistence, and pace limitations . . . , the RFC does not 4 sufficiently account for Plaintiff's moderate limitations in performing activities within a 5 schedule, maintaining regular attendance in the workplace, or completing a normal 6 workday and workweek without interruption.”) (citation modified). 7 The Court agrees with the rationale in the cases outlined above. The RFC’s non- 8 exertional restriction “Plaintiff would be able to understand, remember, and carry out short 9 simplistic instructions” does not adequately account for moderate limitations in Plaintiff’s 10 “ability to comply with job rules, such as safety and attendance.” AR 139. The Court, 11 therefore, finds the ALJ erred in not including Dr. Durr’s opinion that Plaintiff’s “ability 12 to comply with job rules, such as safety and attendance was moderately limited” in the 13 RFC or offering legally sufficient reasons for rejecting it. See Jeremy S., 2024 WL 343179, 14 at *22 (“While moderate limitations do not necessarily indicate that Plaintiff is unable to 15 adequately perform work activity, the ALJ was required to either include these limitations 16 in Plaintiff's RFC assessment or provide legally sufficient reasons for rejecting them.”). 17 Moreover, the record does not support a finding that the ALJ’s error is harmless. The 18 VE testified there are no full-time competitive unskilled jobs available for an individual 19 with Plaintiff’s other limitations and who is “off-task for an average of 15 minutes for each 20 work hour” or “making it only five or six hours through the full day and having to terminate 21 because of impairments.” AR 227-28. It is conceivable, therefore, that had Plaintiff’s RFC 22 accounted for a moderate limitation on her “ability to comply with job rules, such as safety 23 and attendance,” a reasonable ALJ would have reached a different disability determination. 24 See Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006) (The 25 reviewing court cannot consider an error harmless unless it “can confidently conclude that 26 no reasonable ALJ, when fully crediting the [evidence], could have reached a different 27 disability determination.”); see also Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 28 1 2008) (noting an error is harmless when it is “clear from the record” that the error was 2 || “inconsequential to the ultimate nondisability determination’). 3 Vv. CONCLUSION 4 Based on the foregoing, the Court finds the ALJ committed reversible error by 5 || failing to incorporate Dr. Durr’s assessment that Plaintiff is moderately limited in her 6 ability to maintain attendance and perform safety-related work activities on a consistent 7 || basis, or to provide legally sufficient reasons for rejecting these limitations. 8 Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s decision is 9 || REVERSED, and this case is REMANDED for further administrative proceedings 10 || consistent with this opinion. The Clerk of the Court shall enter judgment accordingly and 11 terminate the case. 12 IT IS SO ORDERED. 13 || Dated: June 29, 2026. 14

16 Ho an J. White United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 13