1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 MOSES MANUEL CHAVARIN, Case No. 1:25-cv-810-KES-EGC
8 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S 9 v. MOTION BE GRANTED AND THE ACTION BE REMANDED TO THE 10 COMMISSIONER FOR FURTHER PROCEEDINGS 11 FRANK BISIGNANO Commissioner of Social Security1 12 (Doc. 1) Defendant. 13 14-DAY DEADLINE
14 15 _______________________________________/ 16 I. INTRODUCTION 17 Plaintiff Moises Manuel Chavarin (“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 1999. (Administrative Record (“AR”) 174). He earned a high school 4 diploma. (AR 52). Plaintiff filed an application for DIB and SSI, alleging he became disabled on 5 December 6, 2007 due to autism. (AR 174, 205). At the hearing, Plaintiff, through his attorney, 6 amended the disability date to October 13, 2020. 7 A. Relevant Evidence of Record3 8 On August 1, 2023, Dr. L. Faurbo completed a comprehensive clinical psychological 9 evaluation, including a “medical source statement.” (AR 816, 820–21.) The medical source 10 statement reflects Dr. Faurbo’s opinion that Plaintiff’s test results “indicated the potential presence 11 of an intellectual disability.” (AR 820). The medical source statement further reflects Dr. Faurbo’s 12 opinion that Plaintiff was “moderately impaired” as to his abilities to: (1) “perform[] detailed and 13 complex tasks;” (2) “perform work activities without special or additional supervision;” (3) complete 14 a normal workday or work week without interruptions;” (4) “accept instructions from supervisors;” 15 (5) “interact with co-workers and with the public,” and (6) adapt to the “usual stresses and pressures 16 common to a competitive work environment.” (AR 821). Dr. Faurbo also opined that Plaintiff was 17 mildly limited in “maintaining regular attendance in the workplace” and in the ability to “perform 18 work activities on a consistent basis.” (Id.). Dr. Faurbo noted that all of the limitations were “due 19 to deficits stemming from a cognitive disability as well as a possible mood disorder.” (Id.). 20 B. Administrative Proceedings 21 The Commissioner denied Plaintiff’s application for benefits initially on August 31, 2023, 22 and again on reconsideration on January 22, 2024. (AR 64–87). Consequently, Plaintiff requested 23 a hearing before an Administrative Law Judge (“ALJ”). (AR 98). The ALJ conducted a hearing on 24 August 7, 2024. (AR 38–63). Plaintiff appeared at the hearing with his attorney and testified as to 25 his alleged disabling conditions and work history. (AR 46–58). 26 A Vocational Expert (“VE”) also testified at the hearing. (AR 58–61). In relevant part, the 27
28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 VE testified that an individual with the same age, education and work experience as Plaintiff, who 2 had no external limitations but was limited to: carrying out simple instructions and work-related 3 decisions; occasional interactions with coworkers and supervisors but none with the public; and who 4 could not perform work requiring specific production rate or quotas would be able to work as an 5 industrial cleaner, kitchen helper or warehouse worker. (AR 59–60). The VE also testified that the 6 maximum amount of off-task time that would be tolerated would be “up to 10% of the workday” 7 and up to “one [absence] per month.” (AR 60–61.) 8 C. The ALJ’s Decision 9 In a decision dated September 17, 2024, the ALJ found that Plaintiff was not disabled. (AR 10 14–32). The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 11 20–30). The ALJ decided that Plaintiff had not engaged in substantial gainful activity since June 12 16, 2023. (AR 20). At step two, the ALJ found Plaintiff’s following impairments to be severe: 13 borderline intellectual functioning, autism disorder and anxiety disorder. (AR 20). The ALJ then 14 determined that Plaintiff did not have an impairment or combination of impairments that met or 15 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the 16 Listings”) (step three). (AR 20–24). 17 The ALJ assessed Plaintiff’s residual functional capacity (RFC)4 and applied the assessment 18 at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, 19 we assess your residual functional capacity . . . . We use this residual functional capacity assessment 20 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined 21 that Plaintiff had the following RFC: 22 [T]o to perform medium work as defined in 20 CFR 416.967(c) except he has no exertional limitations, but he has the following nonexertional limitations: He can 23 understand, remember, and carry out simple instructions; he can make simple work- related decisions; he can deal with occasional changes in routine work setting; he 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 the public; he cannot perform any work requiring a specific production rate, such as work on an assembly line, or work with hourly production quotas; and he would 2 need a job where he could work independently, meaning he could work in the vicinity of others, but no tandem work or work as part of a team is needed to 3 complete job tasks. 4 (AR 24; see also id 24–30). Although the ALJ recognized that Plaintiff’s impairments “could 5 reasonably be expected to cause the alleged symptoms,” the ALJ rejected Plaintiff’s subjective 6 testimony as to “the intensity, persistence and limiting effects of these symptoms” as being “not 7 entirely consistent with the medical evidence and other evidence in the record.” (AR 25). 8 The ALJ then determined that Plaintiff had no past relevant work experience (step four) but 9 that, given his/her RFC, he/she could perform a significant number of jobs in the national economy 10 (step five). (AR 30–31). In making this determination, the ALJ relied on the VE’s answers to a 11 series of hypothetical questions the ALJ posed to the VE during the hearing. (AR 59–61). The 12 VE testified that a person with the RFC specified above could perform the jobs of: industrial 13 cleaner, kitchen helper, or warehouse worker. (AR 58–61). The ALJ ultimately concluded 14 Plaintiff was not disabled at any time after June 16, 2023, the alleged onset date. (AR 31). 15 Plaintiff sought review of this decision before the Appeals Council, which denied review on 16 May 2, 2025. (AR 1–6). Therefore, the ALJ’s decision became the final decision. 20 C.F.R. § 17 404.981. 18 III. LEGAL STANDARD 19 A. Applicable Law 20 An individual is considered “disabled” for purposes of disability benefits if [they are] unable 21 “to engage in any substantial gainful activity by reason of any medically determinable physical or 22 mental impairment which can be expected to result in death or which has lasted or can be expected 23 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 24 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 25 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 26 work but cannot, considering [their] age, education, and work experience, engage in any other kind 27 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 28 “The Social Security Regulations set out a five-step sequential process for determining 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 one claim of error: the ALJ erred by formulating an RFC that is not supported 20 by substantial evidence because the ALJ failed to adequately address assessed limitations by a 21 credited medical opinion. (See Doc. 18 at 3–19). The Commissioner counters that the ALJ 22 accounted for Plaintiff’s moderate limitations and translated credited medical opinions into the 23 assessed RFC. (Doc. 20 at 5–11). 24 The undersigned agrees with Plaintiff that the assessed RFC is not supported by substantial 25 evidence, as the ALJ did not adequately address whether and how the assessed RFC accounts for 26 credited medical opinion evidence regarding Plaintiff’s moderate limitations in adaptive functioning. 27 A. Legal Standard 28 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the 1 record.” Robbins, 466 F.3d at 883. “[A]n RFC that fails to take into account a claimant’s 2 limitations is defective.” Valentine, 574 F.3d at 690. 3 “Where an ALJ accords substantial or great weight to a physician’s opinion, he must either 4 incorporate their findings into the RFC or offer an explanation for why he chose not to accept 5 them.” Sahyoun v. Saul, No. 2:18-CV-576-EFB, 2020 WL 1492661, at *3 (E.D. Cal. Mar. 27, 6 2020); see also Martin v. Comm’r of Soc. Sec. Admin., 472 F. App’x 580 (9th Cir. 2012) 7 (unpublished) (“The administrative law judge (ALJ) erred when formulating Martin’s residual 8 functional capacity (RFC) because the RFC neither incorporated Dr. Steiner’s opinion of Martin’s 9 work limitations nor gave specific and legitimate reasons for rejecting it.”); Neufeld v. Berryhill, 10 No. 2:16-cv-03644 (VEB), 2018 WL 4739699, at *6 (C.D. Cal. Sept. 30, 2018) (“Having afforded 11 ‘great weight’ to the opinions of Dr. Bartell and Dr. Loomis, the ALJ was bound to either 12 incorporate their findings as to Plaintiff’s limitations or explain why she decided not to accept 13 them.”); Bain v. Astrue, 319 F. App’x 543, 545−46 (9th Cir. 2009) (holding ALJ erred in not 14 including consultative examining psychologist’s moderate limitations in the RFC, despite 15 specifically crediting these limitations in the opinion); Flores v. Saul, No. 1:18-cv-01523-SKO, 16 2020 WL 509098, at *5 (E.D. Cal. Jan. 31, 2020) (finding ALJ erred by assigning great weight to 17 consultative psychologist’s opinion, but failing to provide specific and legitimate reasons for 18 rejecting significant portions of the opinion); Wascovich v. Saul, No. 2:18-cv-659-EFB, 2019 WL 19 4572084, at *3−5 (E.D. Cal. Sept. 20, 2019) (finding ALJ erred by assigning substantial weight to 20 consulting examiner’s opinion that the plaintiff had a mild to moderate impairment in her capacity 21 to maintain regular attendance, but failed to account for the limitation in the RFC); Harrell v. 22 Kijakazi, No. 1:20-cv-00614-GSA, 2021 WL 4429416, at *4 (E.D. Cal. Sept. 27, 2021) (“The ALJ 23 was under no obligation to accept a medical opinion he found unsupported by the record. But, 24 having clearly stated that he was according [the physician]’s opinion great weight, the ALJ was 25 under an obligation to account for the moderate limitations [the physician] identified irrespective 26 of the broader reasoning in support of the RFC.”). An ALJ errs when they do not explain why they 27 did not adopt all findings or limitations from a persuasive opinion. Patterson v. Comm’r of Social 28 Sec., No. 2:23-cv-00635 AC, 2024 WL 4216810, at *8 (E.D. Cal. Sept. 17, 2024). 1 In examining whether RFC limitations account for some opined non-exertional limitations, 2 courts in this circuit have split on whether RFC limitations to simple / routine tasks with limited 3 public contact account for all moderate non-exertional limitations. Macias v. Saul, No. 1:19-cv- 4 01187-BAM, 2021 WL 856423, at *6 (E.D. Cal. Mar. 8, 2021) (collecting cases and noting that 5 “Courts have rejected the argument that a similar limitation to simple tasks in the RFC adequately 6 accounts for moderate limitations in the ability to maintain regular attendance or complete a normal 7 workday.”). Courts within this district have noted that the district court case law “tends to favor 8 the view that a restriction to simple/routine tasks with limited public contact does not account for 9 the moderate limitations . . . identified in interacting with supervisors and peers, handling work 10 related stressors, maintaining regular attendance, and completing a normal workweek without 11 interruption.” Harrell, 2021 WL 4429416, at *6; Lamar v. Comm’r of Soc. Sec., No. 1:24-cv- 12 00504-EPG, 2025 WL 318294, at *4 (E.D. Cal. Jan. 28, 2025) (noting split and finding that 13 limitations in RFC did not account for all moderate limitations opined by physician); Berenisia 14 Madrigal v. Saul, No. 1:18-cv-01129-SKO, 2020 WL 58289, at *5−6 (E.D. Cal. Jan. 6, 2020) 15 (finding that ALJ’s RFC of simple, routine tasks with limited peer and public contact did not 16 account for opined limitations in “completing a normal workday or work week due to her 17 psychiatric condition, moderate difficulties dealing with stress and changes encountered in the 18 workplace, and an up to moderate likelihood that she would emotionally deteriorate in a work 19 environment”). 20 With these legal standards in mind, the undersigned reviews the weight given to Dr. 21 Faurbo’s opinions. 22 B. Analysis 23 In a medical source statement from an August 1, 2023 report, Dr. Faurbo noted that Plaintiff 24 was not significantly limited in performing simple and repetitive tasks, (AR 820), but found 25 moderate limitations in his ability to perform detailed and complex tasks and in performing work 26 activities without special or additional supervision. Dr. Faurbo also noted that Plaintiff had moderate 27 limitations in the ability to complete a normal workday or workweek without interruptions and in 28 the ability to interact with coworkers and the public. Moderate limitations were further noted in 1 Plaintiff’s ability to accept instructions from supervisors and to deal with the usual stresses 2 encountered in a competitive work environment. Dr. Faurbo found that the limitations were “due to 3 deficits stemming from a cognitive disability as well as a possible mood disorder.” (AR 820–21.) 4 Dr. Faurbo found mild limitations in maintaining regular attendance in the workplace and the ability 5 to perform work activities on a consistent basis. 6 In evaluating the opinion of Dr. Faurbo, the ALJ reasoned as follows: 7 Consultative examiner L. Faurbo, Psy.D., opined that in performing detailed and complex tasks, working without special or additional supervision, completing a normal workday or 8 workweek without interruption, accepting instructions from supervisors, interacting with the public, and dealing with the usual stresses encountered in competitive work environments. 9 (Id.). The opinion of Dr. Faurbo is consistent with the objective record . . . Additionally, such statements are supported by the findings and conclusions of Dr. Faurbo following in-person 10 evaluation, as well as narrative explaining the findings as well as by exam observations, and consistent with treatment record and varied activities. Nonetheless, the undersigned finds 11 the opinion of Dr. Faurbo is only mostly persuasive because the evidence supports that claimant also has additional limitations which the undersigned has set forth in the residual 12 functional capacity above. 13 (AR 29). Based in part on that opinion, the ALJ determined that Plaintiff retained the “residual 14 functional capacity to perform medium work as defined in 20 CFR 416.967(c) with the following 15 limitations: 16 [Plaintiff] can understand, remember, and carry out simple instructions; he can make simple work-related decisions; he can deal with occasional changes in routine work setting; he can 17 occasionally interact with coworkers and supervisors; but he cannot interact with the public; he cannot perform any work requiring a specific production rate, such as work on an 18 assembly line, or work with hourly production quotas; and he would need a job where he could work independently, meaning he could work in the vicinity of others, but no tandem 19 work or work as part of a team is needed to complete job tasks. 20 (AR 24). 21 The question presently before the Court “is whether the ALJ, having accepted [Dr. Faurbo’s] 22 opinion, appropriately translated the moderate limitations from that opinion into concrete restrictions 23 in the RFC.” Harrell, 2021 WL 4429416, at *6−7; see also id. (“But, having clearly stated that he 24 was according Dr. Stafford’s opinion great weight, the ALJ was under an obligation to account for 25 the moderate limitations Dr. Stafford identified irrespective of the broader reasoning in support of 26 the RFC.”). In answering this question, the undersigned is mindful that an ALJ’s RFC findings need 27 only be consistent with assessed limitations and not identical to them. See Turner v. Comm’r of Soc. 28 Sec., 613 F.3d 1217, 1222−23 (9th Cir. 2010); Wascovich, 2019 WL 4572084, at *5 (“This does not 1 necessarily mean that the ALJ was required to explicitly transcribe the limitation in the RFC. Rather, 2 he is required to account for it in his ‘translation.’”); Rounds v. Comm’r of Soc. Sec. Admin., 807 3 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible for translating and incorporating clinical 4 findings into a succinct RFC.”); Ashlock v. Kijakazi, No. 1:21-cv-01687-GSA, 2022 WL 2307594, 5 at *3 (E.D. Cal. June 27, 2022) (“The RFC need not mirror a particular opinion; it is an assessment 6 formulated by the ALJ based on all relevant evidence.”). 7 Here, the undersigned finds that the RFC did not completely address or account for the 8 opined limitations in Dr. Faurbo’s opinion, despite the ALJ’s finding that “the evidence supports 9 that claimant also has additional limitations.” (AR 30). 10 As an initial matter, the undersigned finds that the ALJ’s limitations to simple instructions 11 and occasional contact with coworkers and supervisors, and contact with the public, and only 12 occasional changes in routine work setting, adequately addressed Dr. Faurbo’s opinion that Plaintiff 13 had a moderately limited ability to understand complex instructions and was moderately limited as 14 to his ability to tolerate social interaction. (AR 24). 15 But Dr. Faurbo also noted moderate limitations as to Plaintiff’s ability to: “adapt to the usual 16 stresses common to a competitive work environment,” “complet[e] a normal workday or workweek 17 without interruption,” and “perform work activities without special or additional supervision.” (AR 18 821). And those limitations were not “translated” into the ALJ’s assessed RFC. Wascovich, 2019 19 WL 4572084, at *5. After crediting Dr. Faurbo’s medical source statement, the ALJ needed to 20 address either (1) how the ALJ translated Dr. Faurbo’s remaining limitations as to Plaintiff’s ability 21 to adapt to the usual stresses and pressures common to a competitive work environment including 22 his ability to complete a normal workday or workweek, or to perform work activities without special 23 or additional supervision in a work setting into the RFC, or (2) why the ALJ did not translate those 24 limitations into the RFC. See Stubbs, 539 F.3d at 1174. Absent an explanation for failing to account 25 for these limitations, the ALJ’s RFC determination is not supported by substantial evidence. See 26 Sahyoun, 2020 WL 1492661, at *3; Robbins, 466 F.3d at 886 (“an ALJ is not free to disregard 27 properly supported limitations”); Byrd v. Colvin, 2017 WL 980559, at *8 (D. Or. Mar. 14, 2017) 28 (“Here, the ALJ gave great weight to [the] opinion, but the RFC failed to take into account all of the 1 limitations identified by [the doctor], and the ALJ failed to explain why she did not include the 2 limitations in the RFC. As a result, the ALJ erred in formulating the RFC.”). 3 Defendant maintains that the RFC adequately accounted for all of Plaintiff’s moderate 4 mental limitation limitations because “[a]lthough the ALJ did not include Dr. Faurbo’s limitations 5 in the RFC verbatim, the RFC finding accounted for the limitations.” (Doc 20 at 6). However, in 6 formulating an RFC, the ALJ must account for all of a claimant’s medically determinable 7 impairments, including those that are not “severe,” and evaluate “all of the relevant medical and 8 other evidence.” 20 C.F.R. § 416.945(a)(1); Valentine, 574 F.3d 690 (an RFC that “fails to take 9 into account a claimant’s limitations is defective”). Therefore, an ALJ errs when, as here, an ALJ 10 provides an incomplete RFC ignoring “significant and probative evidence.” Hill v. Astrue, 698 11 F.3d 1153, 1161−62 (9th Cir. 2012). 12 Here, the ALJ generally credited Dr. Faurbo’s opinion and incorporated other moderate 13 limitations into the assessed RFC. However, the ALJ did not address Dr. Faurbo’s opinion as to 14 Plaintiff’s moderate limitations as they related to Plaintiff’s ability to “adapt to the usual stresses 15 and pressures common to a competitive work environment including completing a normal workday 16 or workweek” or “accept instructions from supervisors” by either translating these opined 17 limitations into the RFC or explaining why the ALJ declined to credit Dr. Faurbo’s opinion as to 18 these limitations. (AR 821); see also Macquarrie v. Comm’r of Soc. Sec., No. 1:21-CV-00072- 19 CDB, 2023 WL 8242069, at *7 (E.D. Cal. Nov. 28, 2023). 20 Defendant cites a Ninth Circuit case, Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 21 2008), to support the proposition that an RFC limited to simple work “accommodates a variety of 22 moderate findings, including . . . moderate limitations in handling workplaces stressors.” (Doc. 20 23 at 6−7). However, that case is distinguishable from the instant matter. 24 In Stubbs-Danielson v. Astrue, the Ninth Circuit noted that an “ALJ’s RFC finding properly 25 incorporated the limitations . . . related to pace and the other mental limitations regarding attention, 26 concentration, and adaption.” Id. at 1174. However, courts have frequently distinguished Stubbs- 27 Danielson as inapplicable to cases with opined limitations beyond concentration, persistence, or 28 pace. Macias, 2021 WL 856423, at *6 (distinguishing Stubbs-Danielson as “the moderate 1 restrictions at issue here involve limitations in maintaining attendance and completing a normal 2 workday, not limitations in concentration, persistence or pace”); Harrell, 2021 WL 4429416, at *6 3 (finding that Stubbs-Danielson did not “specifically address the extent to which a limitation to simple 4 and routine tasks appropriately accounts for the limitations identified”); Warren v. Saul, No. 8:19- 5 CV-02270-PD, 2021 WL 259435, at *5 (C.D. Cal. Jan. 26, 2021) (finding case factually 6 distinguishable from Stubbs-Danielson where assessment that Plaintiff could perform work 7 involving simple, repetitive tasks requiring only simple work-related decisions and involving only 8 occasional changes in a routine work setting, with unlimited contact and interaction with supervisors 9 as necessary to receive work-related instructions but otherwise only occasional interaction with 10 coworkers, failed to address the moderate limitations found by physician in plaintiff’s ability to 11 maintain regular attendance, interact with a supervisor, or complete an eight-hour workday in a 12 regular workplace); Sahyoun, 2020 WL 1492661, at *4 (noting factual distinction from Stubbs- 13 Danielson where physician did not opine that plaintiff could sustain work involving simple, 14 repetitive tasks despite his moderate limitations in maintaining regular attendance, completing a 15 normal workday or work). As in those cases, here Dr. Faurbo opined other moderate limitations 16 beyond concentration, persistence, or pace. (See AR 820–21). Stubbs-Danielson therefore does not 17 exempt the ALJ from the requirement that the ALJ account for Dr. Faurbo’s credited opinion as to 18 several limitations. 19 Defendant also cites district court cases within this circuit, contending that Dr. Faurbo’s 20 opined limitations are accounted for within the ALJ’s assessed RFC. (Doc. 20 at 7–8). But most of 21 the case law cited is over five years old, and, as discussed above, more recent caselaw “tends to 22 favor the view that a restriction to simple/routine tasks with limited public contact does not account 23 for the moderate limitations . . . identified in interacting with supervisors and peers, handling work 24 related stressors, maintaining regular attendance, and completing a normal workweek without 25 interruption.” Harrell, 2021 WL 4429416, at *6; Lamar, 2025 WL 318294, at *4; Berenisia 26 Madrigal, 2020 WL 58289, at *5−6. Further, some of the cases Defendant cited do not discuss the 27 issue of limitations beyond concentration, persistence, or pace. See, e.g., Hairston v. Saul, 827 F. 28 App’x 772, 773 (9th Cir. 2020) (unpublished); Colton T. P. v. Kijakazi, No. 1 422CV00254AKBCWD, 2023 WL 5843786, at *2 (D. Idaho Sept. 11, 2023). Defendant’s cited 2 caselaw therefore does not demonstrate that all of Dr. Faurbo’s opined limitations were accounted 3 for within the RFC. 4 Accordingly, the undersigned finds that the ALJ’s RFC determination is not supported by 5 substantial evidence. 6 C. Harmlessness Review 7 The undersigned must now consider whether the ALJ’s error was harmless. Molina, 674 8 F.3d at 1115. Courts look to the record as a whole to determine whether the error alters the outcome 9 of the case. Id.; March v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). An error is harmless “where 10 it is inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115 11 (citations omitted) (first quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998), and then quoting 12 Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)). 13 The undersigned cannot conclude that the error is harmless as it is not clear whether inclusion 14 of the other moderate limitations as opined by Dr. Faurbo would have eliminated available jobs.5 15 Moderate limitations are not per se disabling, but they may translate into more concrete work 16 restrictions. See Macquarrie, 2023 WL 8242069, at *7. For example, the VE testified that one 17 absence or early departure per month would be tolerated by employers for unskilled work. (AR 61 18 (VE testifying that the “number of absences or days leaving early in a month that would be tolerated 19 for unskilled work” would be “up to one per month”)). Had the ALJ included different limitations 20 in the RFC based upon a proper review of the evidence, the ultimate disability determination may 21 have been different. 22 Because the undersigned cannot find that the error was “inconsequential to the ultimate 23 nondisability determination,” the undersigned recommends that this matter be remanded to the 24 Commissioner for further administrative proceedings. Molina, 674 F.3d at 1115. 25 D. Remand 26 In a case where the ALJ’s determination is not supported by substantial evidence or is tainted 27
28 5 This is not to say that the disability determination will or should be different regarding the period at issue--only that 1 by legal error, the court may remand the matter for additional proceedings or an immediate award 2 of benefits. Remand for additional proceedings is proper where (1) outstanding issues must be 3 resolved, and (2) it is not clear from the record before the court that a claimant is disabled. See 4 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 5 Here, the undersigned finds that remand for further proceedings is warranted. See, e.g., 6 Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (affirming a remand for further proceedings 7 where the ALJ failed to explain with sufficient specificity the basis for rejecting the claimant's 8 testimony); Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995) (remanding the case “for further 9 findings evaluating the credibility of [the claimant’s] subjective complaints”). On remand, the 10 Commissioner shall either incorporate all of the limitations assessed by Dr. Faurbo in the assessed 11 RFC or explain why any such limitation is not incorporated into the assessed RFC. 12 V. CONCLUSION AND ORDER 13 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiff’s motion for summary judgment, (Doc. 18), be GRANTED; 15 2. This matter be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for 16 further proceedings consistent with this decision; and 17 3. The Clerk of the Court be DIRECTED to enter judgment in favor of Plaintiff Moses 18 Manuel Chavarin and against Defendant Frank Bisignano, Commissioner of Social 19 Security, and to CLOSE this action. 20 These findings and recommendations are submitted to the District Judge assigned to this 21 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 22 (14) days of service of these recommendations, any party may file written objections to these 23 findings and recommendations with the Court and serve a copy on all parties. Such a document 24 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 25 The District Judge will review the Magistrate Judge’s findings and recommendations 26 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 27 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 28 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). > IT IS SO ORDERED. . 3 | Dated: _ June 17, 2026 Cn Li de Gsllo 4 UNITED STATES MAGISTRATE JUDGE 6 8 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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