Dixon v. O' Malley

1
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CARLTON D.,1
Plaintiff,
v.
FRANK BISIGNANO, Commissioner of
Social Security,2
Defendant.
Case No.: 24-cv-1839-JLS-MMP
REPORT AND
RECOMMENDATION REGARDING
PLAINTIFF’S BRIEF
[ECF No. 9]
Carlton D. (“Plaintiff”) appeals the final decision of the Commissioner of Social
Security denying his application for disability insurance benefits under Title II of the Social
Security Act. ECF No. 1. Plaintiff brings this appeal pursuant to 42 U.S.C. § 405(g),
asserting the Administrative Law Judge (“ALJ”) failed to properly assess the residual
functional capacity (“RFC”). ECF No. 9 at 4.
1 In accordance with Civil Local Rule 7.1(e)(6)(b), the Court refers to all non-government
parties by using their first name and last initial.
2 Frank Bisignano is the current Commissioner of Social Security and is automatically
substituted as the defendant pursuant to Federal Rule of Civil Procedure 25(d).
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 1 of 26

2
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
This matter comes before the Court for a Report and Recommendation on Plaintiff’s
Merits Brief. ECF No. 9. Defendant filed a Responsive Brief, to which Plaintiff replied.
ECF Nos. 10, 11. After a thorough review of the parties’ submissions, the administrative
record, and applicable law, the Court RECOMMENDS the District Judge REVERSE the
Commissioner’s denial of benefits and REMAND the matter for further administrative
proceedings consistent with this opinion.
I. 	BACKGROUND
On the date last insured, Plaintiff was thirty-six years old with a high school
education and past work experience as a furniture rental clerk, repossessor, warehouse
worker, and infantry weapons crewmember in the Army. Administrative Record (“AR”)
26, 106. Plaintiff claims beginning March 24, 2022,3 he became disabled and unable to
work as a result of combined physical and mental impairments including posttraumatic
stress disorder, major depressive disorder, osteoarthritis left wrist, lumbar degenerative
disc disease, and plantar fasciitis. AR 106–08.
On October 19, 2022, Plaintiff filed an application for a period of disability and
disability insurance benefits under Title II of the Social Security Act, alleging disability
beginning March 24, 2022. AR 219–20. The claim was denied by initial determination on
April 28, 2023, and upon reconsideration on July 14, 2023. AR 106–29, 130–43.
Plaintiff filed a written request for a hearing. AR 169–70. On March 29, 2024, the
ALJ held a video hearing. AR 33–64. Plaintiff, represented by counsel, appeared and
testified. AR 37–57. An impartial vocational expert also appeared and testified. AR 57–64.
On May 31, 2024, the ALJ issued an unfavorable decision denying benefits. AR 17–28.
3 The alleged onset date in this application is one day following the ALJ’s prior decision
date finding Plaintiff was not under a disability from March 1, 2017 through March 23,
2022. See AR 78.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 2 of 26

3
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiff requested Appeals Counsel review, which was denied on August 12, 2024.
AR 1–6. The ALJ’s decision then became the final decision of the Commissioner of Social
Security. 42 U.S.C. § 405(h).
Plaintiff timely appealed the denial to this Court for federal judicial review of the
ALJ’s decision pursuant to 42 U.S.C. § 405(g). ECF No. 1.
II. 	SUMMARY OF ALJ’S FINDINGS
A. 	The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process in assessing whether a
claimant is disabled. 20 C.F.R. § 404.1520; Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th
Cir. 1999). In the first step, the Commissioner must determine whether the claimant is
currently engaged in substantial gainful activity; if so, the claimant is not disabled, and the
claim is denied. 20 C.F.R. § 404.1520(a)(4)(i) and (b).
If the claimant is not currently engaged in substantial gainful activity, the second
step requires the ALJ to determine whether the claimant has a “severe” impairment or
combination of impairments significantly limiting his ability to do basic work activities,
and which has lasted or is expected to last for a continuous period of at least twelve months;
if not, the claimant is not disabled and the claim is denied. 20 C.F.R. §§ 404.1520(a)(4)(ii)
and (c), 404.1509 (setting forth the twelve-month duration requirement).
If the claimant has a “severe” impairment or combination of impairments, the third
step requires the ALJ to determine whether the impairment or combination of impairments
meets or equals an impairment in the Listing of Impairments (“Listing”) set forth at 20
C.F.R. § 404, subpart P, Appendix 1; if so, disability is conclusively presumed, and benefits
are awarded. 20 C.F.R. § 404.1520(a)(4)(iii) and (d).
If the claimant’s impairment or combination of impairments does not meet or equal
an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation
process. 20 C.F.R. § 404.1520(e). The fourth step requires the ALJ to determine whether
the claimant has sufficient RFC to perform his past work. 20 C.F.R. § 404.1520(a)(4)(iv).
Therefore, the ALJ must determine the claimant’s RFC before moving to step four.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 3 of 26

4
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
At step four of the sequential process, if the ALJ determines a claimant has sufficient
RFC to perform past relevant work, the claimant is not disabled, and the claim is denied.
20 C.F.R. § 404.1520(a)(4)(iv) and (f)–(g).
At step five, the burden then shifts to the ALJ to establish the claimant is not disabled
because there is other work existing in “significant numbers in the national economy” the
claimant can do, considering the claimant’s RFC, age, education, and work experience. 20
C.F.R. § 404.1560(c); see also 20 C.F.R. § 404.1520(a)(4)(v) and (g)(1). The ALJ usually
meets this burden either (1) by the testimony of a vocational expert who assesses the
employment potential of a hypothetical individual with all the claimant’s physical and
mental limitations that are supported by the record, or (2) by reference to the Medical-
Vocational Guidelines at 20 C.F.R. part 404, subpart P, Appendix 2. Id. The determination
of this issue comprises “the fifth and last step” in the sequential analysis. 20 C.F.R. §
404.1520(a)(4)(v).
B. 	The ALJ’s Application of the Five-Step Process
At step one, the ALJ determined Plaintiff had “not engage[d] in substantial gainful
activity during the period of his alleged onset date of March 24, 2022 through his date last
insured of December 31, 2022.” AR 20.
At step two, the ALJ determined Plaintiff had the following severe impairments:
“osteoarthritis (OA) of left wrist status post surgery, plantar fasciitis, posttraumatic stress
disorder (PTSD), [and] major depressive disorder (MDD).” AR 20. The ALJ found
Plaintiff’s “report of back disorder with pain” was a nonsevere impairment because it
“results in symptoms that are episodic in nature and managed conservatively.” AR 20.
At step three, the ALJ determined Plaintiff “did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments” in the Listing, noting in particular he considered Listings 1.17, 1.18, 12.04,
and 12.15. AR 20. Applying the psychiatric review technique for evaluating mental
impairments at step three, the ALJ determined Plaintiff had moderate limitations in all four
areas of “understanding, remembering, or applying information,” “interacting with others,”
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 4 of 26

5
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“concentrating, persisting, or maintaining pace,” and “adapting or managing oneself.” AR
20–21. The ALJ found Plaintiff’s mental impairments did not satisfy either the Paragraph
B or Paragraph C criteria.4 AR 20–21.
The ALJ determined, through the date last insured, Plaintiff had the RFC to perform
light work as defined by 20 C.F.R. § 404.1567(b), with certain exertional, postural, and
mental limitations as follows:
[Plaintiff] can occasionally climbing of ramps and stairs, never climbing of
ladders, 	ropes, scaffolds, 	and 	occasional 	balancing, stooping, 	kneeling,
crouching, and crawling. The individual can frequently handle, finger, and
feel with the non-dominant left upper extremity. The individual must avoid
concentrated exposure to hazards such as operational control of moving
machinery 	and 	unprotected 	heights. 	The 	individual 	can 	understand,
remember, and carry out simple, routine tasks, no interaction with the general
public, only occasional work-related, non-personal, non-social interaction
with co-workers and supervisors, and is limited to jobs requiring only simple
work-related decisions however can keep pace sufficient to complete tasks
and meet quotas typically found in unskilled work.
AR 21–22.
At step four, the ALJ concluded Plaintiff was unable to perform past relevant work
as 	a 	furniture 	rental 	clerk, 	repossessor, 	warehouse 	worker, 	and 	infantry 	weapons
crewmember. AR 26.
At step five, the ALJ considered that Plaintiff was a “younger individual” on the date
of last insured and had at least a high school education. AR 26. The ALJ determined
transferability of job skill was not material to the disability determination because “using
the Medical-Vocational Rules as a framework supports a finding that [Plaintiff] is ‘not
disabled,’ whether or not [he] has transferable job skills.” AR 26. The vocational expert
testified, given Plaintiff's age, education, work experience, and RFC, he would be “able to
4 The Paragraph B criteria involves limitations in four areas of mental functioning, and the
Paragraph 	C 	criteria 	are 	used 	to 	evaluate 	mental 	disorders 	that 	are 	“serious 	and
persistent[.]” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.01.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 5 of 26

6
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
perform the requirements of representative light occupations with an SVP [Specific
Vocational 	Preparation] 	of 	two,” 	such 	as 	price 	marker 	(DOT 	209.587-034),
housekeeping/cleaner (DOT 323.687-014), and burrito maker (DOT 520.687-046). AR 27.
Based on the vocational expert’s testimony, the ALJ determined, through the date last
insured, Plaintiff was “capable of making a successful adjustment to other work that existed
in significant numbers in the national economy.” AR 27.
Accordingly, the ALJ determined Plaintiff was not under a disability at any time
from March 24, 2022 through December 31, 2022, the date last insured. AR 27.
III. 	STANDARD OF REVIEW
Pursuant 	to 	42 	U.S.C. 	§ 	405(g), 	this 	Court 	has 	authority 	to 	review 	the
Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed
only if “it is either not supported by substantial evidence or is based upon legal error.”
Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Luther v. Berryhill, 891 F.3d
872, 875 (9th Cir. 2018)).
The substantial-evidence standard requires a reviewing court to “look to the existing
administrative record and ask whether it contains sufficient evidence to support the
agency’s factual determinations.” Id. (citing Biestek v. Berryhill, 587 U.S. 97, 102 (2019))
(citation modified). Substantial evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Biestek, 587 U.S. at 103 (citation
omitted)). 	The 	standard 	requires 	“more 	than 	a 	mere 	scintilla, 	but 	less 	than 	a
preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted).
“Overall, the standard of review is highly deferential.” Kitchen v. Kijakazi, 82 F.4th 732,
738 (9th Cir. 2023) (quoting Rounds v. Comm’r, 807 F.3d 996, 1002 (9th Cir. 2015), as
amended). Thus, “[w]here evidence is susceptible to more than one rational interpretation,
it is the ALJ’s conclusion that must be upheld.” Woods, 32 F.4th at 788 (quoting Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)).
A reviewing court “must consider the entire record as a whole, weighing both the
evidence that supports and the evidence that detracts from the Commissioner’s conclusion,
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 6 of 26

7
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and may not affirm simply by isolating a specific quantum of supporting evidence.”
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007)). The ALJ is responsible for resolving conflicts in
medical testimony as well as any ambiguities in the record. Id. at 1010 (citation omitted).
The Court will “review only the reasons provided by the ALJ in the disability determination
and may not affirm the ALJ on a ground upon which he did not rely.” Id.; see also Ferguson
v. O’Malley, 95 F.4th 1194, 1203 (9th Cir. 2024) (“[C]ourts can consider only the reasons
the ALJ asserts.”) (citation modified).
A court may also reverse the Commissioner’s denial of benefits if the denial is based
on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). However,
even if the Court finds the ALJ committed legal error, a court may not reverse an ALJ’s
decision if the error is harmless, “which exists when it is clear from the record that the
ALJ’s error was inconsequential to the ultimate nondisability determination.” Id. at 932
(citation modified) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).
IV. 	ANALYSIS
Plaintiff contends the RFC fails to reflect all of Plaintiff’s limitations. ECF No. 9 at
4. Specifically, Plaintiff challenges the ALJ’s decision on the following grounds: (1) in the
RFC, the ALJ did not account for all the limitations identified by the opinions of Drs.
Morris, Friedland, and Covey, which the ALJ found persuasive; (2) the ALJ failed to
consider the full impact of Plaintiff’s PTSD on his ability to work; and (3) the ALJ’s errors
were not harmless. ECF No. 9 at 6–10. The Court addresses Plaintiff’s arguments in turn.
A. 	Whether the RFC Reflects the Three Persuasive Medical Findings
Plaintiff first contends the ALJ failed to incorporate all the findings of the persuasive
opinions of Drs. Morris, Friedland, and Covey. ECF No. 9. As a result, Plaintiff asserts the
ALJ’s assessed RFC does not capture the total limiting effects of Plaintiff’s impairments.
Id. at 8–9.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 7 of 26

8
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. 	Prior Administrative Medical Findings of Drs. Morris, Friedland, and
Covey
a. 	Dr. Morris
In September 2022, State agency consultant Dr. Kim P. Morris, PsyD, reviewed the
record and performed a mental residual functional capacity assessment of Plaintiff. AR 96–
103.5 As the ALJ correctly noted, Dr. Morris found Plaintiff had “moderate” limitations in
all 	four 	areas 	Paragraph 	B 	criteria 	of 	“understanding, 	remembering, 	or 	applying
information,” “interacting with others,” “concentrate, persist, or maintain pace,” and “adapt
or manage oneself.” AR 97; see AR 25.
Dr. Morris also stated more detailed findings for each area. In “understanding,
remembering, or applying information,” Dr. Morris opined Plaintiff was “moderately
limited” in his “ability to understand and remember detailed instructions” and “not
significantly limited” in his abilities “to remember locations and work-like procedures”
and “to understand and remember very short and simple instructions.” AR 99.
With respect to sustained concentration and persistence limitations, Dr. Morris
opined Plaintiff was “moderately limited” in his abilities “to carry out detailed instructions”
and 	“to 	complete 	a 	normal 	workday 	and 	workweek 	without 	interruptions 	from
psychologically 	based 	symptoms 	and 	to 	perform 	at 	a 	consistent 	pace 	without 	an
unreasonable number and length of rest periods.” AR 100–01. However, Dr. Morris stated
Plaintiff was “not significantly limited” in his abilities to “to carry out very short and simple
instructions[,]” “to maintain attention and concentration for extended periods[,]” “to
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances[,]” “to sustain an ordinary routine without special supervision[,]” “to
work in coordination with or in proximity to others without being distracted by them,” and
“to make simple work-related decisions . . . .” Id.
5 Dr. Morris’ administrative medical finding was in connection with initial determination
of Plaintiff’s prior disability application. See AR 90–104.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 8 of 26

9
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In the area of social interaction, Dr. Morris opined Plaintiff was moderately limited
in his abilities to “to interact appropriately with the general public,” “to accept instructions
and respond appropriately to criticism from supervisors,” and “to get along with coworkers
or peers without distracting them or exhibiting behavioral extremes.” AR 101. Dr. Morris,
however, found Plaintiff was “not significantly limited” in his abilities to “to ask simple
questions or request assistance” and “to maintain socially appropriate behavior and to
adhere to basic standards of neatness and cleanliness.” AR 101–02.
In the area of adapting or managing oneself, Dr. Morris found Plaintiff was
“moderately limited” in his “ability to respond appropriately to changes in the work
setting” but “not significantly limited” in his abilities “to be aware of normal hazards and
take appropriate precautions,” “to travel in unfamiliar places or use public transportation,”
and “to set realistic goals or make plans independently of others.” AR 102.
When asked for an additional explanation regarding the mental residual functional
capacity, Dr. Morris stated the following restrictions:
[Plaintiff] can understand, remember and carry out simple instructions and
can make simple work related decisions, can tolerate occasional changes in a
routine work setting, and can occasionally interact with supervisors and
coworkers, but not with the general public.
AR 102–03.6
b. 	Dr. Friedland
In April 2023, state agency consultant Dr. Myles Friedland, Ph.D., also reviewed the
record and performed a mental residual functional capacity assessment of Plaintiff as of
the date of last insured, December 31, 2022, in connection with this application at the initial
determination level. AR 122–26.
6 Neither party acknowledged nor addressed the information contained in the “Additional
Explanation” section in the findings of Drs. Morris, Friedman, or Covey. See AR 102–03,
126, 142; ECF Nos. 9, 10.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 9 of 26

10
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dr. Friedland found Plaintiff had the same limitations as Dr. Morris found in
Plaintiff’s abilities to understand and remember. AR 122–23.
With respect to sustained concentration and persistence, Dr. Friedland likewise
found Plaintiff was “moderately limited” in his abilities “to carry out detailed instructions”
and 	“to 	complete 	a 	normal 	workday 	and 	workweek 	without 	interruptions 	from
psychologically 	based 	symptoms 	and 	to 	perform 	at 	a 	consistent 	pace 	without 	an
unreasonable number and length of rest periods.” AR 123–24. Dr. Friedland, however,
opined Plaintiff had additional moderate limitations in his abilities “to maintain attention
and concentration for extended periods” and “to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances.” Id.
Dr. Friedland found Plaintiff had the same social interaction and adaption limitations
as Dr. Morris. AR 124–25.
Finally, when asked for an additional explanation, Dr. Friedland stated the following
concrete restrictions:
Claimant can understand and remember simple and some more complex
instructions.
Claimant can sustain concentration and pace for simple one and two-step
mental tasks only due to psychological based symptoms.
Claimant can maintain the social demands of a work-like setting involving
limited contact with co-workers and the general public only.
Claimant can adapt to changes in a work-like setting involving simple
cognitive tasks and limited social contacts only due to a combination of
psychological based symptoms.
AR 126.
c. 	Dr. Covey
In July 2023, state agency consultant Dr. Elizabeth Covey, PsyD, on reconsideration,
performed a mental residual functional capacity assessment based on the medical records
in Plaintiff’s file. AR 140–42.
Dr. Covey opined Plaintiff had the same understanding and memory limitations as
both Drs. Morris and Friedland. AR 141
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 10 of 26

11
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
With respect to sustained concentration and persistence, Dr. Covey found Plaintiff
had the same moderate limitations as Dr. Friedland, plus an additional moderate limitation
in Plaintiff’s ability “to work in coordination with or in proximity to others without being
distracted by them.” AR 141.
Dr. Covey found Plaintiff has social interaction limitations, though in contrast to
Drs. Morris and Friedland, Dr. Covey found Plaintiff’s ability “to get along with coworkers
or peers without distracting them or exhibiting behavioral extremes” was not significantly
limited. AR 141. Otherwise, Dr. Covey found Plaintiff had the same moderate limitations
as Drs. Morris and Friedland. Id.
In the area of adapting and managing oneself, like Drs. Morris and Friedland, Dr.
Covey found Plaintiff was “moderately limited” in his “ability to respond appropriately to
changes in the work setting.” AR 142. Dr. Covey also opined Plaintiff had an additional
moderate limitation in his “ability to set realistic goals or make plans independently of
others.” Id.
Finally, Dr. Covey provided an additional explanation with restrictions similar to
Dr. Morris. 7 AR 142.
[Plaintiff] can understand, remember and carry out simple instructions and
can make simple work related decisions, can tolerate occasional changes, in a
routine setting, and can occasionally interact with supervisors and coworkers,
but not with the general public.
AR 142.
2. 	The ALJ’s Evaluation and RFC Assessment
In evaluating the three prior administrative medical findings as part of the RFC
determination, the ALJ found:
7 The only difference between the two opined mental residual functional capacity
assessments was Dr. Morris phrased one restriction as “can tolerate occasional changes in
a routine work setting” whereas Dr. Covey worded the restriction as “can tolerate
occasional changes, in a routine setting.” Compare AR 101–02 with AR 142.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 11 of 26

12
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In September 2022, State agency consultant, Dr. Morris, found moderate
limitations in all “B” criteria domains. In April 2023 and July 2023, Drs.
Friedland and Covey affirmed the findings. The findings are persuasive. The
State agency supported their findings with explanations based on a review of
the available records at that time, and an understanding of Social Security
Administration disability policies and evidentiary requirements. They are
generally consistent with the Dr. Livesay’s exam showing some difficulty
with recall, and ambivalent mood and anxious affect.
AR 25 (internal citations omitted).8 In translating his medical and prior administrative
medical findings into the RFC, the ALJ assessed mental limitations in the RFC as follows:
[Plaintiff] can understand, remember, and carry out simple, routine tasks, no
interaction with the general public, only occasional work-related, non-
personal, non-social interaction with co-workers and supervisors, and is
limited to jobs requiring only simple work-related decisions however can keep
pace sufficient to complete tasks and meet quotas typically found in unskilled
work.
AR 21–22.
3. 	The Parties’ Positions
Both parties acknowledge the ALJ found the opinions of Drs. Morris, Friedland, and
Covey to be persuasive. AR 25; ECF Nos. 9 at 6, 10 at 3. Plaintiff also does not dispute the
ALJ’s RFC adequately captures many of the opined limitations of the three medical
consultants. Rather, Plaintiff asserts the ALJ erred by failing to address and incorporate
three moderate limitations opined by Drs. Morris, Friedland, or Covey into the RFC: (1)
his “ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform and a consistent pace without an
8 Plaintiff does not challenge the ALJ’s evaluation of any of these prior administrative
medical findings. See ECF Nos. 9, 11. The ALJ also assessed the medical opinion of Dr.
Livesay regarding Plaintiff’s mental impairments, finding it was “not persuasive” because
it was “inconsistent with evidence of some difficulty with recall, and ambivalent mood and
anxious affect, and the claimant’s diagnosis of PTSD.” AR 25. Neither party challenges
this finding. See ECF Nos. 9, 10.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 12 of 26

13
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
unreasonable number and length of rest periods[,]” (2) his “ability to maintain attention
and concentration for extended periods,” and (3) his “ability to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances . . . .”
ECF No. 9 at 7–8. Plaintiff argues the assessed limitations in the RFC of requiring only
“simple work-related decisions” and “can keep pace sufficient to complete tasks and meet
quotas typically found in unskilled work” does not capture “the total limiting effects” of
all Plaintiff’s mental impairments. Id. at 8. Plaintiff contends the absence of the opined
moderate limitations from the RFC renders it inaccurate. Id. at 9.
Defendant contends substantial evidence supports the ALJ’s RFC finding. ECF No.
10 at 5. Defendant construes Plaintiff’s argument as “the ALJ should have included
additional mental limitations in his RFC finding because the ALJ found him to have
moderate mental limitations at step two.” Id. at 3. Defendant contends because the
regulations define a moderate limitation as “functioning in this area independently,
appropriately, effectively, and on a sustained basis is fair[,]” the ALJ found Plaintiff’s
ability to function in these areas was “fair” and “therefore did not necessarily need to be
precluded by his RFC finding.” Id. at 3–4 (citation omitted).
4. 	Applicable Law for the RFC Assessment
The 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.” Titles
II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL
374184, at *1 (July 2, 1996). It reflects the most a claimant can do despite his limitations.
20 C.F.R. § 404.1545(a)(1); SSR 96-8p, 1996 WL 374184, at *1 (“RFC is not the least an
individual can do despite his or her limitations or restrictions, but the most.”). An RFC
assessment must include an individual’s functional limitations or restrictions as a result of
all of his impairments—even those that are not severe—and must assess his “work-related
abilities on a function-by-function basis[.]” SSR 96-8p, 1996 WL 374184, at *1; see 20
C.F.R. § 404.1545(a)(1)–(2) and (e); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685,
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 13 of 26

14
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
690 (9th Cir. 2009) (“[A]n RFC that fails to take into account a claimant’s limitations is
defective.”).
An RFC determination must be based on “all the relevant evidence in [the] case
record.” 20 C.F.R. § 404.1545(a)(1). In the context of assessing mental limitations, as the
ALJ acknowledged in his step three analysis,9 “[t]he limitations identified in the ‘paragraph
B’ criteria are not a residual functional capacity assessment but are used to rate the severity
of mental impairments at steps 2 and 3 of the sequential evaluation process” and “[t]he
mental residual functional capacity assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment of the areas of mental functioning.”
AR 21. The regulations require an ALJ to assess “the nature and extent of [the plaintiff’s]
mental limitations and restrictions” to determine his ability to “work on a regular and
continuing basis.” 20 C.F.R. § 404.1545(c). “A limited ability to carry out certain mental
activities, such as limitations in understanding, remembering, and carrying out instructions,
and in responding appropriately to supervision, coworkers, and work pressures in a work
setting, may reduce [the plaintiff’s] ability to do past work and other work.” Id.
A court must uphold an ALJ’s RFC assessment when “the ALJ applied the proper
legal standard and his decision is supported by substantial evidence.” Bayliss v. Barnhart,
427 F.3d 1211, 1217 (9th Cir. 2005). An ALJ errs when he provides an incomplete RFC
determination that ignores or discounts “significant and probative evidence in the record
favorable to [the plaintiff’s] position.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
9 In his evaluation of the Paragraph B criteria, the ALJ relied on the report of consultative
examiner, Dr. Jerry Livesay (though the ALJ erroneously referred to him as “Lovesay” and
“Lovejoy”) and Plaintiff’s Function Report only. See AR 20–21. The ALJ’s step three
analysis does not rely on or cite to Drs. Morris, Friedland, or Covey. See id. Rather, the
only discussion of the opinions of Drs. Morris, Friedland, and Covey is when the ALJ
found the opinions persuasive, as described above. See AR 25.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 14 of 26

15
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5. 	Analysis
In assessing the medical opinions and prior administrative medical findings, the ALJ
did not specifically acknowledge or address the specific opined limitations of the three
medical consultants. See AR 25. Rather, the ALJ noted generally Dr. Morris “found
moderate limitations in all ‘B’ criteria domains” and “Drs. Friedland and Covey affirmed
these findings.” Id. The ALJ then merely declared, without further analysis as to their
functional assessments or limitations themselves, “[t]he findings are persuasive.” Id.
“The ALJ must consider the step-[three] limitations along with all of the relevant
evidence in the case record when forming the RFC.” Israel v. Astrue, 494 F. App’x 794,
796 (9th Cir. 2012) (citation modified). The ALJ, however, generally “need not discuss all
evidence presented to her. Rather, she must explain why significant probative evidence has
been rejected.” Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193 (9th Cir. 2022) (quoting Vincent
ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (citation modified));
see Flores v. Shalala, 49 F.3d 562, 570–71 (9th Cir. 1995), as amended on denial of reh’g
(June 5, 1995) (“[T]he Secretary may not reject ‘significant probative evidence’ without
explanation.”) (citation omitted).
Here, the ALJ did not identify specific limitations or explain which of Drs. Morris,
Friedman, and Covey’s opined limitations he found persuasive. Nor did the ALJ explain
which of the opined limitations the ALJ rejected and the basis for doing so, particularly to
the extent the three opinions varied. As discussed below, this was reversible error.
a. 	Sustained Concentration, Persistence, and Pace
All three medical consultants opined Plaintiff had moderate limitations in his
abilities “to carry out detailed instructions” and complete a normal workday or work week
without interruptions from his psychological condition, and Drs. Friedland and Covey
opined Plaintiff had additional moderate limitations in his abilities “to maintain attention
and concentration for extended periods” and “to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances.” See AR 100–
01, 123–24, 141. Dr. Covey also found Plaintiff was “moderately limited” in his ability “to
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 15 of 26

16
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
work in coordination with or in proximity to others without being distracted by them.” AR
141.
While 	all 	three 	doctors 	ultimately 	concluded 	Plaintiff 	could 	understand 	and
remember at least simple instructions and make simple decisions, Dr. Friedland further
opined Plaintiff could “sustain concentration and pace for simple one and two-step mental
tasks only due to psychological based symptoms.” AR 126.
Having found the three consultants’ opinions persuasive, “the ALJ was required to
incorporate their moderate limitations, or otherwise explain why they were not adopted.”
Sonja Renee T. v. Comm’r of Soc. Sec., No. 24-cv-00323-REP, 2025 WL 2696925, at *4
(D. Idaho Sept. 22, 2025); see Flores, 49 F.3d at 571 (“[T]he ALJ’s written decision must
state reasons for disregarding evidence of that nature.”). The Ninth Circuit has recognized
reversible error where an ALJ accorded great weight to a medical opinion, yet the ALJ’s
assessed RFC failed to take into account certain limitations identified by that opinion. See
Betts v. Colvin, 531 F. App’x 799, 800 (9th Cir. 2013). The Court reasoned “[t]he ALJ
provided no reasons for disregarding aspects” of the medical opinion “without providing
any explanation.” Id. Here, the ALJ did precisely that. Despite finding Dr. Friedland’s
opinion persuasive, the ALJ never acknowledged, incorporated, or rejected Dr. Friedland’s
opined limitation that Plaintiff could “sustain concentration and pace for simple one and
two-step mental tasks only . . . .” See AR 25, 126. This was error. Nor did the ALJ question
the vocational expert about a person limited to simple one and two-step mental tasks only.
See AR 57–64.10
The Court cannot conclude the ALJ’s error was inconsequential to Plaintiff’s
ultimate disability determination. See Garcia, 768 F.3d at 932. The Ninth Circuit has
10 The ALJ posed a hypothetical to the VE that matched Plaintiff’s medical-vocational
profile. The ALJ then posed a separate hypothetical adding a mental limitation that the
individual (1) would be off task greater than ten percent of the workday or (2) would be
absent two days or more a month on a recurring basis. AR 61–62. The VE testified either
additional mental limitation would be work preclusive. AR 62.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 16 of 26

17
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
recognized a limitation to simple one-to-two step tasks is more restrictive than a limitation
to simple, routine instructions: See Leach v. Kijakazi, 70 F.4th 1251, 1257 (9th Cir. 2023)
(“Level-one jobs encompass instructions that include, at most, two tasks.”);11 Rounds, 807
F.3d at 1003 (“Only tasks with more than one or two steps would require ‘detailed’
instructions.”). As the Ninth Circuit explained in Leach:
Most 	pertinently, 	level-one 	jobs 	require 	only 	“simple 	one-or 	two-step
instructions” but 	level-two 	jobs 	require “detailed 	but 	uninvolved 	. 	. .
instructions.” 	Both 	reasoning 	levels 	require 	simple 	(or 	“uninvolved”)
instructions. . . . The key distinction between those two levels is that level-one
jobs require instructions involving at most two steps, whereas level-two jobs
may require ‘detailed’—that is, potentially longer—instructions.
70 F.4th at 1256–57 (citation modified). At step five, the ALJ concluded Plaintiff was
capable of performing requirements of representative light occupations including a price
marker, DOT 209.587-034, 1991 WL 671802, and burrito maker, 520.687-046, 1991 WL
674058—both of which require level two reasoning. Thus, had the ALJ incorporated Dr.
Friedland’s opined restriction limiting Plaintiff to simple one and two-step tasks, a properly
formulated 	RFC 	might 	contain 	mental 	limitations 	inconsistent 	with 	representative
occupations identified by the vocational expert that the ALJ found Plaintiff could perform.
11 “The Dictionary of Occupational Titles assigns each job a ‘reasoning development’ level,
on a six-tiered scale of Level One (simplest) to Level Six (most complex).” Id. at 1256
(citing Dictionary of Occupational Titles, App. C, § III, 1991 WL 688702 (4th ed. 1991)).
The first two levels are as follows:
LEVEL 1[:] Apply commonsense understanding to carry out simple one- or
two-step instructions. Deal with standardized situations with occasional or no
variables in or from these situations encountered on the job.
LEVEL 2[:] Apply commonsense understanding to carry out detailed but
uninvolved written or oral instructions. Deal with problems involving a few
concrete variables in or from standardized situations.
Id.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 17 of 26

18
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
See, e.g., Seiber v. Colvin, No. 14-cv-01149-BR, 2015 WL 4994195, at *4 (D. Or. Aug.
19, 2015) (finding harmful error where the ALJ merely limited the plaintiff to “simple,
routine tasks” despite giving significant weight to medical opinions the plaintiff was
limited to 1-2 step instructions); Evan T. B. v. Bisignano, No. 24-cv-1428-JC, 2025 WL
2481056, at *5 (C.D. Cal. Aug. 28, 2025) (finding the ALJ’s limitation to “simple, routine,
and repetitive tasks” was inconsistent with the medical opinion the claimant was capable
of performing simple one-to two-step tasks); Stefanie S. v. Kijakazi, No. 20-cv-1134-RBM,
2022 WL 594547, at *5 (S.D. Cal. Feb. 25, 2022) (“[A] number of district courts in the
Ninth Circuit have reversed ALJ decisions imposing a ‘simple, repetitive tasks’ RFC limit
where the ALJs fail to address and distinguish conclusions by doctors that claimants can
perform one-and-two step instructions.”) (citation modified).
b. 	Adapting and Managing Oneself
Likewise, in the area of adaption, all three medical consultants opined Plaintiff had
a moderate limitation in his “ability to respond appropriately to changes in the work
setting,” and Dr. Covey found Plaintiff had an additional moderate limitation in his “ability
to set realistic goals or make plans independently of others.” AR 102, 125–26, 142. Drs.
Morris and Covey each stated a concrete limitation Plaintiff could tolerate “occasional”
changes in his routine setting, AR 103, 142, whereas Dr. Friedland stated Plaintiff could
“adapt to changes in a work-like setting involving simple cognitive tasks and limited social
contact only due to a combination of psychological based symptoms.” AR 124. Despite
finding all three opinions persuasive, the ALJ did not acknowledge, incorporate, or provide
a sufficient explanation for rejecting Drs. Morris and Covey’s opinions restricting Plaintiff
to only “occasional” change in his work setting. See AR 25. Nor was the vocational expert
asked a hypothetical limiting Plaintiff to “occasional” change in his routine or work setting.
See AR 57–64. This was error, and the Court cannot conclude the ALJ’s error was
inconsequential. See Kilpatrick, 35 F.4th at 1193 (“[The ALJ] must explain why significant
probative evidence has been rejected.”) (citation omitted); Flores, 49 F.3d at 571 (The ALJ
“may not reject ‘significant probative evidence’ without explanation.”) (citation omitted));
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 18 of 26

19
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Betts, 531 F. App’x at 800 (“The ALJ did err, however, by disregarding aspects of
examining physician Dr. Marcel Van Eerd’s opinion without providing any explanation.”);
see also Bagby v. Comm’r of Soc. Sec., 606 F. App’x 888, 890 (9th Cir. 2015) (finding the
ALJ’s RFC assessment limiting the claimant to “simple, repetitive tasks, no contact with
the public, and occasional interaction with coworkers” did not reflect a medical opinion
the claimant was limited in her ability to “respond appropriately to usual work situations
and to changes in a routine work setting”) (citation modified).
c. 	Defendant’s Arguments Are Not Persuasive
Defendant makes several unavailing arguments in support of the ALJ’s RFC
assessment. First, Defendant contends an ALJ is not required to include every moderate
limitation in the assessed RFC. ECF No. 10 at 4.12 While the Court generally agrees an
ALJ may not be required to impose restrictions in the RFC based on a “moderate”
limitation, the ALJ must “at least consider the issue.” See Tammy W. v. Comm’r of Soc.
Sec., 787 F. Supp. 3d 1175, 1183 (W.D. Wash. 2025); Timothy B. v. Saul, No. 20-cv-03411-
SK, 2022 WL 181261, at *4 (N.D. Cal. Jan. 20, 2022) (“While moderate limitations in
various areas of functioning are not necessarily per se disabling, the ALJ was required to
either include them in the RFC or explicitly reject those portions of the doctors’ opinions
12 Defendant cites Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007) and LaCroix v.
Barnhart, 465 F.3d 881, 888 (8th Cir. 2006) for this proposition. Neither case is applicable
here. In 	Hoopai, the Ninth Circuit held substantial evidence supported the ALJ’s
determination the plaintiff did not suffer from a sufficiently severe non-exertional
limitation that would require the assistance of a vocational expert and prohibit the ALJ’s
exclusive reliance on the grids at step five. 499 F.3d at 1078. Hoopai did not address the
ALJ’s assessment of the RFC. See id.
Lacroix is neither binding nor applicable. 465 F.3d at 887–88. The Eighth Circuit
found the ALJ was not required to accept the findings of a non-treating, non-examining
physician to the extent such findings were inconsistent with the opinion of an examining
physician under the pre-2017 regulations. Id. at 888. Here, the pre-2017 regulations do not
apply, see Woods, 32 F.4th at 792, and it is undisputed the ALJ found the opinions of Drs.
Morris, Friedman, and Covey persuasive.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 19 of 26

20
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
with reasoned explanations.”); Jeremy S. v. O’Malley, No. 23-cv-00184-AJB-JLB, 2024
WL 343179, at *22 (S.D. Cal. Jan. 29, 2024), report and recommendation adopted, 2024
WL 5705635 (S.D. Cal. Mar. 15, 2024). (“While moderate limitations do not necessarily
indicate that Plaintiff is unable to adequately perform work activity, the ALJ was required
to either include these limitations in Plaintiff's RFC assessment or provide legally sufficient
reasons for rejecting them.”). Here, even though the ALJ expressly found the opinions of
Drs. Morris, Friedland, and Covey persuasive, the ALJ did not incorporate their opined
concrete restrictions; nor did the ALJ reject them through reasoned explanations.
Defendant also cites Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008),
seemingly for the proposition the ALJ’s RFC adequately captures the moderate limitations
identified by Drs. Morris, Friedland, and Covey. ECF No. 10 at 4. In Stubbs-Danielson,
the Ninth Circuit held an ALJ’s assessment limiting a claimant to “simple, routine,
repetitive work” “adequately captures restrictions related to concentration, persistence, or
pace where the assessment is consistent with restrictions identified in the medical
testimony.” 539 F.3d at 1174. There, the medical evidence consisted of two opinions from
Drs. McCullum and Eather, which the ALJ found persuasive. Id. at 1173. Dr. McCullon
opined in relevant part the plaintiff was “moderately limited” in her ability “to perform at
a consistent pace without an unreasonable number and length of rest periods” and “not
significantly limited” in her abilities to “carry out very short simple instructions,”
“maintain attention and concentration for extended periods,” and “sustain an ordinary
routine without special supervision.” Id. at 1173, 1174. Dr. Eather opined the plaintiff
retained the ability to “carry out simple tasks.” The Ninth Circuit found “the ALJ translated
[the plaintiff’s] condition, including the pace and mental limitations, into the only concrete
restrictions available to him—Dr. Eather’s recommended restriction to ‘simple tasks.’” Id.
at 1174 (emphasis added). The Ninth Circuit found the limitation to “simple tasks” was
consistent with both doctors’ opinions.
Defendant’s reliance on Stubbs-Danielson is misplaced. Importantly, here, the ALJ’s
RFC assessment is not consistent with restrictions identified in the medical opinions the
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 20 of 26

21
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ALJ found persuasive, as discussed above. See AR 100–01, 123–24, 141. Unlike in Stubbs-
Danielson, there was more than one “concrete restriction” available to the ALJ: Drs. Morris
and Covey opined Plaintiff could “understand, remember and carry out simple instructions
and . . . make simple work related decisions” but Dr. Friedland further stated Plaintiff could
“sustain concentration and pace for simple one and two-step mental tasks only due to
psychological based symptoms.” Compare AR 103, 142 with 126. And despite finding all
three doctors’ opinions persuasive, the ALJ never acknowledged, incorporated, or rejected
Dr. Friedland’s opined restriction to simple one and two-step tasks only. Thus, the Court
cannot conclude the ALJ’s RFC limiting Plaintiff to “simple, routine tasks” is consistent
with, and sufficiently accounts for, the opined limitations of all three opinions the ALJ
found persuasive.
Furthermore, Stubbs-Danielson is distinguishable, as it did not address the same
scope of moderate limitations presented here. See, e.g., George S. v. Kijakaji, No. 20-cv-
10257-GJS, 2022 WL 479906, at *3 (C.D. Cal. Feb. 16, 2022) (finding Stubbs-Danielson
inapposite as it did not address moderate limitations in “maintaining regular attendance,
completing a normal workday and dealing with stress in the workplace”); Blaze J. v.
Comm’r of Soc. Sec. Admin., No. 24-cv-02251-PHX-SHD, 2025 WL 2733271, at *4 (D.
Ariz. Sept. 25, 2025) (finding the Commissioner’s reliance on Stubbs-Danielson misplaced
where “the RFC’s limitation to simple tasks addressed limitations relating to concentration,
persistence, and pace, which are largely different in nature than the adaptability and self-
management limitations at issue here”).
6. 	Conclusion
In sum, although the ALJ found the opinions of Drs. Morris, Friedland, and Covey
persuasive—a 	finding 	neither 	party 	challenges—the 	ALJ 	did 	not 	incorporate 	Dr.
Friedland’s opined restriction Plaintiff could “sustain concentration and pace for simple
one and two-step mental tasks only” or Drs. Morris and Covey’s opinions limiting Plaintiff
to “occasional” change to his work routine setting. While the ALJ may have considered
both restrictions, he failed to acknowledge that consideration or provide a legally sufficient
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 21 of 26

22
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reason for rejecting either. As a result, the Court cannot conclude substantial evidence
supports the ALJ’s RFC assessment. See Valentine, 574 F.3d at 690 (“[A]n RFC that fails
to take into account a claimant’s limitation is defective.”); Hill, 698 F.3d at 1161 (finding
error where the ALJ provides an incomplete RFC determination that ignores or discounts
“significant and probative evidence in the record favorable to [the plaintiff’s] position.”);
Betts, 531 F. App’x at 800 (“The ALJ provided no reasons for disregarding aspects of [the
persuasive medical] opinion, so we must reverse.”).
B. 	Whether the ALJ Considered the Full Impact of the PTSD Diagnosis
Next, Plaintiff argues the ALJ “failed to consider the full impact of [Plaintiff’s]
PTSD on his ability to work.” ECF No. 9 at 9. Plaintiff highlights two portions of the
record. First, Plaintiff cites his report he is “[u]nable to be around men wearing Old Spice
Classic cologne/body wash” and had “a nightmare once a month, very hypervigilant,
jumpy, irritable, difficulty being intimate [with] wife.” Id. (quoting AR 405). Second,
Plaintiff relies on as statement in the report of Dr. Livesay, the consultative psychiatric
examiner, stating Plaintiff’s anxiety was “triggered by certain stimuli such as smells and
white males.” Id. (quoting AR 794). Plaintiff contends the ALJ’s RFC is defective because
it “lacks any limitations to account for [Plaintiff’s] inability to be around this segment of
the population and certain smells”—specifically “it omits restrictions on exposure to white
males and certain olfactory stimuli, both of which are known to trigger PTSD.” Id.
In opposition, Defendant asserts the ALJ found Plaintiff’s PTSD was a severe
impairment at step two and provided numerous mental limitations in the RFC. ECF No. 10
at 5. According to Defendant, “[t]o the extent that Plaintiff alleges greater work-related
limitations than provided for in the RFC finding, he relies on his own subjective
allegations” which the ALJ discounted—a finding which Plaintiff does not challenge. Id.
In reply, Plaintiff contends “the medical evidence supports that [Plaintiff’s] PTSD
is triggered by “certain stimuli, such as certain smells and white males.” ECF No. 11 at 5.
Plaintiff further argues “the ALJ recognized [Plaintiff’s] sexual assault during the hearing
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 22 of 26

23
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
yet failed to explain why there were no limitations incorporated into the RFC to account
for the triggers identified in the medical evidence.” Id.
The ALJ did not err by not incorporating a limitation into the RFC restricting
Plaintiff’s exposure to “white males and certain olfactory stimuli” as Plaintiff asserts.
Neither of Plaintiff’s arguments are persuasive, and substantial evidence supports ALJ’s
findings on this issue.
First, Plaintiff cites a psychiatry note from June 10, 2022 summarizing Plaintiff’s
reported symptoms of his PTSD. AR 405. The Ninth Circuit has made clear the ALJ need
not accept the plaintiff's “statements as to the severity and limiting effects of his or her
symptoms as true.” Laborin v. Berryhill, 867 F.3d 1151, 1154 n.4 (9th Cir. 2017). Rather,
the ALJ must evaluate the plaintiff's “symptom testimony so that the ALJ can take that
testimony—insofar as it is credible—into account as part of the RFC assessment.” Id.; see
Higgins v. Kijakazi, No. 22-35966, 2023 WL 7211390, at *2 (9th Cir. Nov. 2, 2023) (“An
ALJ need not adopt allegations that the record does not support.”) (citing Osenbrock v.
Apfel, 240 F.3d 1157, 1164–65 (9th Cir. 2001)).
In discrediting Plaintiff’s subjective statements and limitations—a finding Plaintiff
does not challenge—the ALJ found Plaintiff’s “statement about the intensity, persistence,
and limiting effects” of his symptoms were “inconsistent with the longitudinal medical
evidence of record.” AR 23. The ALJ specifically identified numerous symptoms attributed
to PTSD, including Plaintiff’s hypervigilance, inability to tolerate crowds, anger, and lack
of trust. AR 22–23. The ALJ concluded the medical records were not consistent with “the
degree of limitation alleged” and did not “not support a finding that the claimant’s
impairments preclude all work activity.” AR 24–25. Plaintiff does not challenge the ALJ's
evaluation of his subjective statements. See ECF No. 9 at 4 (identifying the single disputed
issue as “Whether the RFC reflects all of [Plaintiff’s] limitations.”). Thus, because the ALJ
discredited Plaintiff’s subjective statements, the ALJ was not required to incorporate
Plaintiff’s statements regarding intensity, persistence, and limiting effects in the RFC
assessment.
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 23 of 26

24
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Second, Plaintiff also cites to the report of consultative examiner Dr. Livesay.
Notably, the portion cited by Plaintiff is a summary of Plaintiff’s reported history and
symptoms—not a medical finding or observation:
The claimant reports a history of post-traumatic stress disorder relative to his
six and a half years of service in the US army. He took a medical discharge
from the army in 2017 with a 100% VA service connected disability fee. The
claimant reports depression and anxiety, but was unable to specify a frequency
for the anxiety and depression as well as an intensity of the anxiety and
depression. The claimant reported that his anxiety and depression were
triggered by certain stimuli such as certain smells and white males. The
claimant reported around people that he keeps his distance, but feels okay and
is alright when he is alone by himself. . . .
AR 793–94. Despite Plaintiff’s reported triggers, Dr. Livesay concluded in relevant part
Plaintiff’s “ability to interact with the public, coworkers and supervisor was not impaired.”
AR 796. In evaluating the medical opinions in connection with the RFC assessment, the
ALJ 	expressly 	found 	Dr. Livesay’s 	opinion 	was 	“not 	persuasive” 	because it 	was
“inconsistent with evidence of some difficulty with recall, and ambivalent mood and
anxious affect, and the [plaintiff’s] diagnosis of PTSD.” AR 25. Once again, Plaintiff does
not challenge the ALJ’s conclusion finding Dr. Livesay’s opinion not persuasive. See ECF
No. 9 at 4 (identifying single disputed issue as “[w]hether the RFC reflects all of
[Plaintiff’s] limitations.”).
In sum, contrary to Plaintiff’s argument, there is no medical evidence in the record
supporting a limitation restricting Plaintiff’s exposure to white males or an environment
limitation to avoid certain smells. The ALJ found Dr. Livesay’s opinion unpersuasive, and
as discussed in detail above, none of the other medical consultants’ findings support such
a limitation. Consequently, the Court finds substantial evidence supports the ALJ’s
omitting such a restriction from the RFC.
V. 	REMAND
The Court must still affirm “if the error is harmless.” Zavalin v. Colvin, 778 F.3d
842, 845 (9th Cir. 2015). An error is considered harmless when it is “inconsequential to
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 24 of 26

25
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir.
2020) (quoting Tommasetti, 533 F.3d at 1038).
For the reasons discussed above, the ALJ erred by not incorporating opined
restrictions of Drs. Morris, Friedland, and Covey, despite finding the opinions persuasive.
As a result, the RFC is defective. Further, the Court cannot conclude the ALJ’s error was
inconsequential to the nondisability determination, as a properly formulated RFC might
contain mental limitations inconsistent with representative occupations identified by the
vocational expert that the ALJ found Plaintiff could perform.
Thus, the Court has discretion to either remand for further proceedings before the
ALJ or remand for an award of benefits. Garrison, 759 F.3d at 1019. Where “additional
proceedings can remedy defects in the original administrative proceeding, a social security
case should be remanded.” Id. (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir.
1981)); see also Revels, 874 F.3d at 668.
Plaintiff seeks remand for further administrative proceedings. ECF No. 9 at 11. The
Court agrees and finds remand for further administrative proceedings is appropriate.
VI. 	CONCLUSION AND RECOMMENDATION
The Court submits this Report and Recommendation to United States District Judge
Janis L. Sammartino under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c)(1)(a) of the
United States District Court for the Southern District of California. For the reasons set forth
above, IT IS HEREBY RECOMMENDED that the District Judge issue an Order:
(1) APPROVING and ADOPTING this Report and Recommendation;
(2) REVERSING the Commissioner’s decision; and
(3) REMANDING the matter for further administrative proceedings consistent with
this opinion.
IT IS HEREBY ORDERED any party to this action may file written objections
with the Court and serve a copy on all parties no later than February 18, 2026. The
document should be captioned “Objections to Report and Recommendation.”
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 25 of 26

26
24-cv-1839-JLS-MMP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IT IS FURTHER ORDERED any Reply to the Objections shall be filed with the
Court and served on all parties no later than fourteen days after being served with a copy
of another party’s objections.
IT IS SO ORDERED.
Dated: February 4, 2026 	_____________________________________________
HON. MICHELLE M. PETTIT
United States Magistrate Judge
Case 3:24-cv-01839-JLS-MMP Document 13 Filed 02/04/26 PageID.<pageID>
Page 26 of 26