(SS)Macias v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 JUAN A. MACIAS, ) Case No.: 1:19-cv-01187-BAM 12 ) Plaintiff, ) ORDER REVERSING AGENCY’S DENIAL OF 13 v. ) BENEFITS AND ORDERING REMAND ) 14 ANDREW M. SAUL, Commissioner of Social ) Security, ) 15 ) Defendant. ) 16 ) 17 18 INTRODUCTION 19 Plaintiff Juan A. Macias (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying his applications for disability insurance 21 benefits under Title II of the Social Security Act and supplemental security income under Title XVI of 22 the Social Security Act. The matter is currently before the Court on the parties’ briefs, which were 23 submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.1 24 Having considered the parties’ briefs, along with the entire record in this case, the Court finds 25 that the decision of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence in 26 27 1 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, including 28 entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 7, 8, 16.) 1 the record and is not based upon proper legal standards. Accordingly, the Commissioner’s 2 determination will be reversed and remanded for further proceedings. 3 FACTS AND PRIOR PROCEEDINGS 4 Plaintiff filed applications for disability insurance benefits and supplemental security income 5 on September 17, 2015. AR 310-11, 312-16.2 Plaintiff alleged that he became disabled on July 31, 6 2015, due to stroke, memory loss, high blood pressure, cholesterol and diabetes. AR 350. Plaintiff’s 7 applications were denied initially and on reconsideration. AR 132-36, 144-49. Subsequently, Plaintiff 8 requested a hearing before an ALJ. ALJ Edward Bauer held a hearing on January 12, 2018, and a 9 supplemental hearing on July 6, 2018. AR 41-69, 70-78. ALJ Bauer issued an order denying benefits 10 on August 8, 2018. AR 16-34. Plaintiff sought review of the ALJ’s decision, which the Appeals 11 Council denied, making the ALJ’s decision the Commissioner’s final decision. AR 1-5. This appeal 12 followed. 13 Hearing Testimony 14 The ALJ held an initial hearing on January 12, 2018, in Pasadena, California. Plaintiff 15 appeared with his attorney. Elizabeth Ramos, an impartial vocational expert, also appeared. AR 43- 16 44. 17 Plaintiff initially testified about recent landscaping labor that he did for one or two weeks and 18 earned about $1,000. He was moving plants around for install work, but he stopped because his back 19 was hurting, and he could not do the work. AR 47-49. Plaintiff confirmed that he previously had a 20 stroke in his work truck and was hospitalized for about one month. From a physical standpoint, he 21 still has some pains in his back and legs, but he does not have any weakness in his arms or legs. The 22 main reason he cannot work is mental. He has trouble concentrating and remembering things. His 23 wife has to remind him of everything that he has to do. He mostly passes the time by watching TV. 24 He no longer drives and has not driven since the stroke. He still has trouble with dizziness and has 25 been to the ER a few times. He deals with dizziness about once a week. AR 49-51. 26 27 28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 When asked about his stopping of the landscape work, Plaintiff testified that he was not 2 mentally able to do the work. He would forget what he was being told. They agreed with him that it 3 was not working out after the two weeks. Plaintiff ended the work. AR 51-52. 4 Plaintiff testified that he did not know what year it was. His wife tells him but later on he 5 forgets. He did know what city they were in. Sometimes his memory is better than others and 6 sometimes he is more forgetful. AR 52. His wife helps him out with medications and doctor 7 appointments. He would not be able to do it on his own. He sometimes forgets to take his 8 medications or thinks that he already took them when he did not. AR 55. He has problems 9 remembering names, even his niece and nephews. He also has problems with his social functioning, 10 getting along with others and interacting with people, because of anxiety. AR 55-56. 11 Plaintiff reported that he does chores around the house, simple things like sweeping, picking up 12 stuff. His wife handles the bills and finances. AR 53. 13 In response to questions from his attorney, Plaintiff testified that he still gets headaches about 14 once a week, which typically last about 20 minutes. During that time, he has to lie down. Plaintiff 15 also testified that he has problems staying on his feet for long periods of time. His lower back hurts. 16 He sometimes has dizziness when standing or walking. He also gets tired when standing on his feet 17 for long periods of time. He can stand about 20 minutes at time. When doing the landscaping work, 18 he would have to take breaks for about 10 or 15 minutes. At home doing activities, he also needs to 19 take rest breaks. AR 53-55. 20 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The VE classified 21 Plaintiff’s past work as cement mason. The ALJ also asked the VE hypotheticals. For the first 22 hypothetical, the ALJ asked the VE to assume a person of Plaintiff’s age, education and work 23 experience who could lift and carry 20 pounds occasionally, 10 frequently, could stand and walk six 24 hours, sit for six hours, never climb ladders, ropes or scaffolds, occasionally balance, stoop, kneel, 25 crouch and crawl, no exposure to hazards such as unprotected heights or dangerous machinery and 26 limited to simple, routine tasks. The VE testified that this would eliminate Plaintiff’s past work, but 27 there would be other work available, such as bench assembler, folder – laundry, and conveyor belt 28 bakery worker. AR 60-61. If the person could never balance, it would not make a difference. If the 1 person was limited to simple, one to two step tasks, reasoning level one, the VE testified that the 2 conveyor belt bakery worker would remain appropriate. There also would be other jobs, such as 3 basket filler and bagger – garment. AR 61. 4 If they returned to hypothetical one, light with simple, routine tasks and the other limitations, 5 but changed it to ten pounds occasionally and standing and walking of two hours, and 50 or plus, the 6 VE testified that there would be no transferability. If someone were off task for 15% of the time, the 7 VE testified that it would eliminate all work. Also, if a person was absent on average three days a 8 month or more, the VE testified that would be preclusive of employment. AR 61-62. 9 Following the VE’s testimony, the ALJ elected to order another psychology CE because there 10 were suggestions in the record that Plaintiff’s mental status had gotten worse since the stroke, not 11 better. AR 63-65. The ALJ also left the record open for additional records. 12 On July 8, 2018, the ALJ convened a supplemental hearing in Pasadena, California. Plaintiff 13 appeared with his attorney. VE Antonio Reyes also appeared. AR 71-72. Before taking testimony 14 from the VE, the ALJ recapped testimony from the previous regarding Plaintiff’s past work, which 15 was classified as cement mason, performed as heavy. AR 75. In response to a general question from 16 Plaintiff’s counsel, the VE testified that for a person limited to simple, routine tasks who still required 17 supervisory task redirection two times per workday, beyond what the supervisor would normally do, 18 employment would be precluded. The VE further testified that even if it was just one time per day, it 19 would exceed tolerances. The VE confirmed that this testimony was based on his training, experience 20 and expertise. AR 75-76. 21 Medical Record 22 The relevant medical record was reviewed by the Court and will be referenced below as 23 necessary to this Court’s decision. 24 The ALJ’s Decision 25 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 26 determined that Plaintiff was not disabled under the Social Security Act. AR 22-34. Specifically, the 27 ALJ found that Plaintiff had not engaged in substantial gainful activity since July 31, 2015, his alleged 28 onset date. AR 24. The ALJ identified status post left cerebellar hemorrhage with external ventricular 1 drain placement and removal, diabetes, hypertension, obesity, major depressive disorder, anxiety 2 disorder and cognitive dysfunction as severe impairments. AR 24-25. The ALJ determined that the 3 severity of Plaintiff’s impairments did not meet or equal any of the listed impairments. AR 25-26. 4 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 5 functional capacity (“RFC”) to lift and carry 20 pounds occasionally, 10 pounds frequently, stand and 6 walk for 6 hours during an 8-hour workday, and sit for 6 hours. He was precluded from climbing 7 ropes, ladders and scaffolds, but could engage in other postural activity occasionally. He could never 8 balance or be exposed to workplace hazards. Mentally, he was limited to simple 1 or 2-step tasks. AR 9 26-32. With this RFC, the ALJ found that Plaintiff could not perform his past relevant work, but he 10 could perform other jobs in the national economy, such as conveyor belt bakery worker, basket filler 11 and garment bagger. AR 32-33. The ALJ therefore concluded that Plaintiff was not disabled under 12 the Social Security Act. AR 33. 13 SCOPE OF REVIEW 14 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 15 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 16 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 17 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 18 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 19 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 20 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 21 considered, weighing both the evidence that supports and the evidence that detracts from the 22 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 23 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 24 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 25 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 26 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 27 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 28 /// 1 REVIEW 2 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 3 substantial gainful activity due to a medically determinable physical or mental impairment which has 4 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 5 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 6 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 7 her age, education, and work experience, engage in any other kind of substantial gainful work which 8 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 9 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 10 1990). 11 DISCUSSION3 12 1. RFC 13 Plaintiff contends that the ALJ erred in rejecting portions of the opinion rendered by examining 14 physician, Dr. Danita Stewart, and failing to include those limitations in the RFC. 15 On March 9, 2018, Dr. Danita Stewart, a licensed clinical psychologist, completed a 16 consultative psychological evaluation of Plaintiff. AR 1288-93. Dr. Stewart observed that Plaintiff 17 “presented as a poor historian due to significant difficulty with memory” and his daughter completed 18 the intake documentation and provided historical information on Plaintiff’s condition. AR 1288. 19 Plaintiff did not present with malingering behaviors and his effort was fair. Id. Plaintiff reported to 20 Dr. Stewart that he had significant difficulty with memory, concentration and focus and experienced 21 depression and anxiety. AR 1289. On mental status examination, Plaintiff was pleasant and 22 cooperative, his effort was adequate, and his response time and work pace were within normal limits. 23 He was oriented to person, time, place and purpose of examination and his thoughts were organized in 24 a linear manner. His current intellectual functioning was in the “low to borderline range.” AR 1290. 25 Dr. Stewart found Plaintiff’s memory to be “moderately diminished for immediate, intermediate and 26 27 3 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to 28 be construed that the Court did not consider the argument or brief. 1 remote recall” and his attention and concentration span were “mildly diminished.” AR 1291. His 2 fund of knowledge was low. His insight and judgment were appropriate, and he was able to respond 3 appropriately to imaginary situations requiring social judgment and knowledge of the norms. Id. 4 On the Wechsler Adult Intelligence Scale, Fourth Edition, Plaintiff scored in the low to 5 borderline range, with a Full Scale IQ of 68. He had an auditory memory index score of 40, a visual 6 memory score of 82 and a visual working memory score of 70. AR 1291-92. Dr. Stewart indicated 7 that the test results appeared to be generally “a valid estimate of the claimant’s functional level at [the] 8 time.” AR 1292. 9 Based on the tests results and clinical data, Dr. Stewart stated that Plaintiff’s overall cognitive 10 ability fell within the low to borderline range. His probable diagnoses were unspecified 11 neurocognitive disorder and adjustment disorder with mixed anxiety and depressed mood, chronic. 12 AR 1292. Dr. Stewart opined that Plaintiff would be able to understand, remember and carry out 13 short, simplistic instructions without difficulty. He had a moderate inability to understand, remember 14 and carry out detailed instructions due to significant problems with memory, focus and concentration 15 subsequent to his stroke in 2015. Dr. Stewart further opined that Plaintiff “may have difficulty making 16 simplistic work-related decisions without special supervision.” AR 1292. Although Plaintiff was 17 socially appropriate with her, Dr. Stewart opined that Plaintiff may have difficulty interacting 18 appropriately with supervisors, coworkers and peers on a consistent basis. From a cognitive 19 standpoint, he had “a moderate inability to maintain attendance and complete an 8-hour workday in a 20 regular workplace setting.” AR 1292. He also had a moderate inability to deal with the usual stressors 21 of a competitive workplace setting given his psychological symptoms including depression, anxiety 22 and irritability. Plaintiff did not appear able to manage finances on his own behalf. AR 1292-93. 23 In formulating Plaintiff’s RFC, the ALJ cited Dr. Stewart’s opinion that “the claimant ‘would 24 be able to understand, remember, and carry out short, simplistic instructions without difficulty, ‘he 25 was socially appropriate with the examiner,’ and that he ‘has a moderate inability to maintain 26 attendance and complete an 8 hour workday.’” AR 31. The ALJ found that these statements 27 “constitute opinions to a reasonable degree of medical certainty, and ultimately support [the] finding 28 that the claimant . . . remains capable of performing simple 1 and 2 step tasks.” Id. Plaintiff argues, 1 however, that the ALJ’s RFC determination limiting Plaintiff to simple 1 and 2 step tasks fails to 2 account for Dr. Stewart’s moderate limitations on attendance and completing a workday. (Doc. 14 at 3 9-11.) 4 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record.” 5 Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). “[A]n RFC that fails to take into 6 account a claimant’s limitations is defective.” Valentine v. Comm'r. of Soc. Sec. Admin., 574 F.3d 685, 7 690 (9th Cir. 2009). Further, “[t]he hypothetical an ALJ poses to a vocational expert, which derives 8 from the RFC, ‘must set out all the limitations and restrictions of the particular claimant.’” Id. (citing 9 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 10 “Where an ALJ accords substantial or great weight to a physician’s opinion, he must either 11 incorporate their findings into the RFC or offer an explanation for why he chose not to accept them.” 12 Sahyoun v. Saul, No. 2:18-CV-576-EFB, 2020 WL 1492661, at *3 (E.D. Cal. Mar. 27, 2020), citing 13 Martin v. Comm’r of Social Security Administration, 472 Fed.App’x 580 (9th Cir. 2012) (unpublished) 14 (“The administrative law judge (ALJ) erred when formulating Martin’s residual functional capacity 15 (RFC) because the RFC neither incorporated Dr. Steiner’s opinion of Martin’s work limitations nor 16 gave specific and legitimate reasons for rejecting it.”) and Neufeld v. Berryhill, 2018 WL 4739699, at 17 *6, (C.D. Cal. Sept. 30, 2018) (“Having afforded ‘great weight’ to the opinions of Dr. Bartell and Dr. 18 Loomis, the ALJ was bound to either incorporate their findings as to Plaintiff’s limitations or explain 19 why she decided not to accept them.”); see also Bain v. Astrue, 319 Fed.App’x 543, 545-46 (9th Cir. 20 2009) (holding ALJ erred in not including consultative examining psychologist's moderate limitations 21 in the RFC, despite specifically crediting these limitations in the opinion); Flores v. Saul, No. 1:18-cv- 22 01523-SKO, 2020 WL 509098, at *5 (E.D. Cal. Jan. 31, 2020) (finding ALJ erred by assigning great 23 weight to consultative psychologist’s opinion, but failing to provide specific and legitimate reasons for 24 rejecting significant portions of the opinion); Wascovich v. Saul, No. 2:18-cv-659-EFB, 2019 WL 25 4572084, at *3-*5 (E.D. Cal. Sept. 20, 2019) (finding ALJ erred by assigning substantial weight to 26 consulting examiner’s opinion that the plaintiff had a mild to moderate impairment in her capacity to 27 maintain regular attendance, but failed to account for the limitation in the RFC). 28 1 Here, the ALJ did not expressly assign “great” or “substantial” weight to Dr. Stewart’s 2 opinion.4 However, the ALJ explicitly credited Dr. Stewart’s limitations that Plaintiff would be able 3 to understand, remember, and carry out short, simplistic instructions without difficulty, was socially 4 appropriate with the examiner, and had a moderate inability to maintain attendance and complete an 8 5 hour workday, by finding that these statements constituted “opinions to a reasonable degree of medical 6 certainty, and ultimately support [the] finding that the claimant . . . remains capable of performing 7 simple 1 and 2 step tasks.” AR 31. As indicated by Plaintiff, the ALJ’s RFC limitation to simple 1 8 and 2 step tasks does not reflect limitations in maintaining regular attendance or completing a normal 9 workday, which were assessed by Dr. Stewart. 10 The Commissioner argues that the RFC determination appropriately incorporated Dr. Stewart’s 11 opinion into the RFC finding for simple, one- or two-step tasks. In other words, the limitation to 12 simple 1 and 2 step tasks appropriately synthesized Dr. Stewart’s opinion that Plaintiff had moderate 13 limitations in attending work and completing a normal workday. (Doc. 15 at 6-7.) This argument is 14 not persuasive. Courts have rejected the argument that a similar limitation to simple tasks in the RFC 15 adequately accounts for moderate limitations in the ability to maintain regular attendance or complete 16 a normal workday. See, e.g., Donna M. v. Saul, No. 19-CV-03134-DMR, 2020 WL 6415601, at *4 17 (N.D. Cal. Nov. 2, 2020) (noting limitation to simple, routine tasks with no public interaction in RFC 18 failed to address other moderate limitations, such as plaintiff's ability to relate to and interact with 19 coworkers, associate with day-to-day work activity, maintain regular attendance in the workplace and 20 perform work activities on a consistent basis, and perform work activities without special or additional 21 supervision); Sahyoun, 2020 WL 1492661, at * 4 (rejecting argument that RFC determination that 22 plaintiff could sustain work involving simple, repetitive tasks adequately captured moderate 23 24 4 The ALJ apparently assigned the greatest weight to the opinion of consultative examiner, Dr. Lou Ellen Sherrill, 25 (AR 868-75), stating “I accept the assessments of the state agency examining mental health consultant (Exhibit 9F).” AR 26. Dr. Sherrill opined on March 3, 2016, that Plaintiff could perform simple and repetitive tasks with minimal supervision 26 and was able to perform those tasks with appropriate persistence and pace over a normal work cycle. Dr. Sherrill further opined the Plaintiff would have moderate difficulty understanding, remembering and carrying out complex verbal 27 instructions, could tolerate ordinary work pressures, was able to interact satisfactorily with other in the workplace, including the general public, and could observe basic work and safety standards in the workplace without difficulty. AR 28 872. 1 limitations in maintaining regular attendance, completing a normal workday or work week without 2 interruption from a psychiatric condition, and handling normal work-related stress); Christopher G. v. 3 Saul, No. 2:19-CV-06150-AFM, 2020 WL 2079972, at *6 (C.D. Cal. Apr. 30, 2020) (finding RFC to 4 perform work involving simple, routine tasks with limited public and co-worker interaction failed to 5 address moderate limitations in performing activities within a schedule, maintaining regular 6 attendance, being punctual within customary tolerances, completing a normal workday or workweek 7 or performing at a consistent pace without an unreasonable number and length of rest periods.); 8 Flores, 2020 WL 509098, at *5 (finding limitation to “simple repetitive tasks with occasional public 9 contact” failed to accommodate moderate difficulties in completing a normal workweek without 10 interruption from psychiatric symptoms identified by consultative psychologist); but see Messerli v. 11 Berryhill, No. 1:16–cv–00800–SKO, 2017 WL 3782986, at *11 (E.D. Cal. Aug. 31, 2017 (finding 12 limitation to “simple repetitive tasks” accounted for moderate limitations in claimant’s ability accept 13 instructions from supervisors and interact appropriately with coworkers and the public, moderate 14 limitations in claimant’s ability to maintain work attendance and to complete a normal workday and 15 workweek without interruptions from psychological problems, mild to moderate limitations in the 16 claimant’s ability to perform work activities on a consistent basis without special or additional 17 instruction, and moderate to serious limitations in her ability to deal with the usual stress encountered 18 in a competitive workplace); Calisti v. Colvin, 2015 WL 7428724, at * 7 (E.D. Cal. Nov. 23, 2015) 19 (holding RFC including limitations for simple, repetitive work adequately captured moderate 20 limitations in maintaining attendance, completing a normal workday without interruptions from 21 psychiatric condition and dealing with stress); Schmidt v. Colvin, No. 2:12-cv-00016-KJN, 2013 WL 22 5372845, at *17 (E.D. Cal. Sept. 25, 2013) (RFC finding for simple, unskilled work adequately 23 incorporated moderate mental limitations). 24 Additionally, the Commissioner, relying on Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th 25 Cir. 2008), argues that the ALJ's “RFC finding---which limited the complexity of the cognitive tasks 26 that Plaintiff would perform—was precisely the vehicle to capture Plaintiff’s moderate cognitive 27 impairment” as identified by Dr. Stewart. (Doc. 15 at 9.) In Stubbs-Danielson, the Ninth Circuit held 28 that “an ALJ’s assessment of a claimant adequately captures restrictions related to concentration, 1 persistence, and pace where the assessment is consistent with restrictions identified in the medical 2 testimony.” Id. at 1174. Stubbs-Danielson is distinguishable as the moderate restrictions at issue here 3 involve limitations in maintaining attendance and completing a normal workday, not limitations in 4 concentration, persistence or pace. See, e.g., Warren v. Saul, No. 8:19-CV-02270-PD, 2021 WL 5 259435, at *5 (C.D. Cal. Jan. 26, 2021) (finding case factually distinguishable from Stubbs-Danielson 6 where assessment that Plaintiff could perform work involving simple, repetitive tasks requiring only 7 simple work-related decisions and involving only occasional changes in a routine work setting, with 8 unlimited contact and interaction with supervisors as necessary to receive work-related instructions but 9 otherwise only occasional interaction with coworkers, failed to address the moderate limitations found 10 by physician in plaintiff's ability to maintain regular attendance, interact with a supervisor, or 11 complete an eight-hour workday in a regular workplace); Sayhoun, 2020 WL 1492661, at *4 (noting 12 factual distinction from Stubbs-Danielson where physician did not opine that plaintiff could sustain 13 work involving simple, repetitive tasks despite his moderate limitations in maintaining regular 14 attendance, completing a normal workday or work). 15 The Commissioner further argues that even if the Court disagrees that the RFC finding 16 appropriately accounted for Dr. Stewart’s opinion, the ALJ sufficiently explained why he rejected 17 greater mental limitations than those given in the RFC finding. (Doc. 15 at 11-13.) In particular, the 18 Commissioner posits that “the ALJ’s finding of inconsistent medical evidence regarding Plaintiff’s 19 cognitive functioning suffices to articulate why greater cognitive limitations were not warranted.” (Id. 20 at 15.) A review of the ALJ’s decision does not reveal any stated reason expressly rejecting Dr. 21 Stewart’s opinion that Plaintiff had a moderate inability to maintain attendance and complete an 8- 22 hour workday in a regular workplace setting. AR 26-32. Instead, as discussed above, the ALJ 23 credited this statement in Dr. Stewart’s opinion as constituting an opinion to a “reasonable degree of 24 medical certainty.” AR 31. However, the ALJ’s RFC limitation to “simple 1 or 2 step tasks” does 25 not adequately account for limitations on attendance and completing a workday. “While moderate 26 limitations do not necessarily indicate that Plaintiff is unable to perform all work activity, the ALJ was 27 required to either include these limitations in Plaintiff's RFC assessment or provide legally sufficient 28 reasons for rejecting them.” Christopher G., 2020 WL 2079972, at *7; Wiles v. Berryhill, No. 2:16- 1 CV-09558-GJS, 2017 WL 5186333, at *3 (C.D. Cal. Nov. 8, 2017) (identifying that although 2 moderate limitations in various areas of functioning, such as in the ability to maintain regular 3 attendance or to complete a normal workday and workweek are not per se disabling, ALJ erred in 4 assessing RFC without either including the limitations or offering specific reasons for rejecting 5 opinion). Absent any explanation for failing to account for these limitations, the ALJ’s RFC 6 determination is not supported by substantial evidence. 7 2. Remedy 8 The decision whether to remand for further proceedings or order an immediate award of 9 benefits is within the Court's discretion. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 10 Unless “the record has been fully developed and further administrative proceedings would serve no 11 useful purpose,” remand for further proceedings is warranted. Garrison v. Colvin, 759 F.3d 995, 1020 12 (9th Cir. 2014). As it is not clear that “further administrative proceedings would serve no useful 13 purpose,” remand for further proceedings is appropriate. Id.; see also Dominguez v. Colvin, 808 F.3d 14 403, 407 (9th Cir. 2015) (“A district court may reverse the decision of the Commissioner of Social 15 Security, with or without remanding the cause for a rehearing, but the proper course, except in rare 16 circumstances, is to remand to the agency for additional investigation or explanation.”) (internal 17 quotes and citations omitted). 18 CONCLUSION 19 Based on the foregoing, the Court finds that the ALJ’s disability determination warrants 20 remand. Accordingly, the decision is REVERSED, and the case REMANDED to the ALJ for further 21 proceedings consistent with this order. The Clerk of the Court is DIRECTED to enter judgment in 22 favor of Plaintiff Juan A. Macias and against Defendant Andrew M. Saul, Commissioner of Social 23 Security. 24 IT IS SO ORDERED. 25 Dated: March 5, 2021 /s/ Barbara A. McAuliffe _ 26 UNITED STATES MAGISTRATE JUDGE 27 28