Opinion

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7

8 LACARRA N. MYLES

Case No. 1:25-cv-00437-SKO

9 Plaintiff,

ORDER ON PLAINTIFF’S SOCIAL

10 v.

SECURITY COMPLAINT

11 FRANK BISIGNANO, (Doc. 1)

Commissioner of Social Security,

12

Defendant.

13

_____________________________________/

14

15 I. INTRODUCTION

16 Plaintiff Lacarra N. Myles (“Plaintiff”) seeks judicial review of a final decision of the

17 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for

18 disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). (Doc. 1.) The matter

19 is currently before the Court on the parties’ briefs, which were submitted, without oral argument, to

20 the Honorable Sheila K. Oberto, United States Magistrate Judge.1

21 II. BACKGROUND

22 Plaintiff was born in 1983. (Administrative Record (“AR”) 367.) She was placed in special

23 education classes and ultimately earned a high school diploma. (AR 694.) Plaintiff filed an

24 application for supplemental security income, alleging she became disabled on February 1, 2021,

25 due to blindness or low vision, breathing problems, a past procedure in which 4 inches of her stomach

26 was removed, chest pain, arthritis, major migraines, varicose veins, bipolar, anxiety, and depression.

27 (AR 227.)

28

1 A. Relevant Evidence of Record2

2 On May 28, 2021, W. Fahnbulleh, PsyD completed a psychological consultative exam. (See

3 AR 693–89.) Based on her exam, Dr. Fahnbulleh listed her assessment of Plaintiff’s “Work Related

4 Abilities.” (AR 698.) Included in that section, Dr. Fahnbulleh found that Plaintiff was “moderately

5 limited” in her ability to “maintain regular attendance” and “ability to complete a normal workday

6 or workweek without interruptions resulting from the [Plaintiff’s] psychiatric condition.” (Id.)

7 B. Administrative Proceedings

8 The Commissioner denied Plaintiff’s application for benefits initially on August 3, 2021, and

9 again on reconsideration on April 10, 2022. (AR 183–224.) Consequently, Plaintiff requested a

10 hearing before an Administrative Law Judge (“ALJ”). (AR 283–85.) The ALJ conducted a hearing

11 on November 1, 2023. (AR 102–32.) Plaintiff appeared at the hearing with her attorney and testified

12 as to her alleged disabling conditions and work history. (AR 104–27.) A Vocational Expert (“VE”)

13 also testified at the hearing. (AR 127–31.) In relevant part, the VE testified that needing three

14 unscheduled ten-minute breaks in addition to normal breaks and / or absenteeism of more than one

15 day per month would be preclusive of all competitive work at all exertional levels. (AR 130.)

16 C. The ALJ’s Decision

17 In a decision dated March 27, 2024, the ALJ found that Plaintiff was not disabled. (AR 22–

18 37.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 25–

19 37.) The ALJ decided that Plaintiff had not engaged in substantial gainful activity since February

20 17, 2021. (AR 25.) At step two, the ALJ found Plaintiff’s following impairments to be severe:

21 migraine headaches, a history of multiple surgeries due to salmonella poisoning, back pain, wrist

22 pain, osteoarthritis, a history of stent placement in lung, varicose veins, occlusion and stenosis of the

23 carotid artery, major depressive disorder, bipolar disorder, anxiety disorder, post-traumatic stress

24 disorder (PTSD), borderline intellectual functioning vs. intellectual disability, and a learning

25 disorder. (AR 26–27.) The ALJ then determined that Plaintiff did not have an impairment or

26 combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R.

27

28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the

1 Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 27–29.)

2 The ALJ assessed Plaintiff’s residual functional capacity (RFC)3 and applied the assessment

3 at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four,

4 we assess your residual functional capacity . . . . We use this residual functional capacity assessment

5 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined

6 that Plaintiff had the RFC:

7 to perform light work as defined in 20 CFR 416.967(b) subject to the following

limitations: (1) no climbing of ladders, ropers or scaffolds, (2) occasional climbing

8

of ramps or stairs, (3) occasional stooping, balancing, crouching, kneeling or

9 crawling, (4) no concentrated exposure to extreme cold, wetness, or dangerous

hazards such as unprotected heights or dangerous machinery, (5) the claimant can

10 understand, remember and carry out simple instructions, and (6) can adapt to

occasional changes in a routine work environment.

11

12 (AR 29–30; see also id. at 29–35.) Although the ALJ recognized that Plaintiff’s impairments “could

13 reasonably be expected to cause some of the alleged symptoms,” the ALJ rejected Plaintiff’s

14 subjective testimony as to the “the intensity, persistence and limiting effects of these symptoms”

15 “not entirely consistent with the medical evidence and other evidence in the record.” (AR 31.)

16 The ALJ then determined that Plaintiff could not perform her past relevant work (step four)

17 but that, given her RFC, she could perform a significant number of jobs in the national economy

18 (step five). (AR 35–37.) In making this determination, the ALJ relied on the VE’s answers to a

19 series of hypothetical questions the ALJ posed to the VE during the hearing. (AR 127–130.) The

20 VE testified that a person with the RFC specified above could perform the job of mail room clerk,

21 office helper, or merchandise marker. (AR 128.) The ALJ ultimately concluded Plaintiff was not

22 disabled at any time after February 17, 2021, the alleged onset date. (AR 40.)

23 Plaintiff sought review of this decision before the Appeals Council, which denied review on

24

25 3 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 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES

26 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 from an

27 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 evidence, and

28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’”

1 October 30, 2024. (AR 6–11.) Therefore, the ALJ’s decision became the final decision of the

2 Commissioner. 20 C.F.R. § 404.981.

3 III. LEGAL STANDARD

4 A. Applicable Law

5 An individual is considered “disabled” for purposes of disability benefits if [they are] unable

6 “to engage in any substantial gainful activity by reason of any medically determinable physical or

7 mental impairment which can be expected to result in death or which has lasted or can be expected

8 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However,

9 “[a]n individual shall be determined to be under a disability only if [their] physical or mental

10 impairment or impairments are of such severity that [they are] not only unable to do [their] previous

11 work but cannot, considering [their] age, education, and work experience, engage in any other kind

12 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).

13 “The Social Security Regulations set out a five-step sequential process for determining

14 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180

15 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the

16 following description of the sequential evaluation analysis:

17 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

18 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

19 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.

20

404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If

21 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

22 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

23 claimant is not disabled. If not, the claimant is disabled.

24 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or

25 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett,

26 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520).

27 “The claimant carries the initial burden of proving a disability in steps one through four of

28 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

1 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to

2 the Commissioner in step five to show that the claimant can perform other substantial gainful work.”

3 Id. (citing Swenson, 876 F.2d at 687).

4 B. Scope of Review

5 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when

6 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record

7 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is ‘more than

8 a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might accept as

9 adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consol.

10 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Ford v. Saul, 950 F.3d 1141, 1154 (9th

11 Cir. 2020).

12 “This is a highly deferential standard of review.” Valentine v. Comm’r of Soc. Sec. Admin.,

13 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by inferences

14 reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)

15 (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the evidence

16 is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. Massanari, 253 F.3d

17 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one rational interpretation,

18 the court may not substitute its judgment for that of the Commissioner.” (citations omitted)).

19 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a

20 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan,

21 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole,

22 weighing both evidence that supports and evidence that detracts from the [Commissioner’s]

23 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

24 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.”

25 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin.,

26 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record

27 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti,

28 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he

1 burden of showing that an error is harmful normally falls upon the party attacking the agency’s

2 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted).

3 IV. DISCUSSION

4 Plaintiff asserts two claims of error: the ALJ erred in (1) partially crediting consultative

5 examiner W. Fahnbulleh, PsyD without explaining why they did not account for Dr. Fahnbulleh’s

6 opinion that Plaintiff was “moderately limited” as to her ability to maintain regular attendance and

7 to complete a normal workday or workweek in the assessed RFC, and (2) not properly evaluating

8 the persuasiveness of Dr. Fahnbulleh’s opinion. (See Doc. 14 at 6–14.) The Commissioner counters

9 that the ALJ appropriately found Dr. Fahnbulleh’s opinion partially persuasive and, in doing so, the

10 ALJ properly considered the supportability and consistency of Dr. Fahnbulleh’s opinion. (Doc. 16

11 at 11–12 (citing AR 35).) The Commissioner also contends that Dr. Fahnbulleh’s opinions that

12 Plaintiff was “moderately limited” as to maintaining attendance and completing a normal workday

13 and workweek were incorporated into the RFC by way of the limitation to simple work with

14 occasional changes in a routine work environment.” (Doc. 16 at 6; see also id. at 6–9.)

15 The Court agrees with Plaintiff that because the ALJ found Dr. Fahnbulleh’s opinion at least

16 partially persuasive, either (1) Dr. Fahnbulleh’s opinion that Plaintiff was moderate limited in her

17 ability to maintain regular attendance and complete a normal workday and workweek should have

18 been incorporated into the RFC, or (2) the ALJ should have explained why they were rejecting those

19 parts of Dr. Fahnbulleh’s opinion. (See Doc. 14 at 11–12.)

20 Dr. Fahnbulleh examined Plaintiff in May of 2021 and found that Plaintiff was “moderately

21 limited” in her ability to “maintain[] regular attendance” and in her “ability to complete a normal

22 workday or workweek without interruptions resulting from the [Plaintiff’s] psychiatric condition.”

23 (AR 693, 698). In evaluating that medical evidence, the ALJ found Dr. Fahnbulleh’s opinions were

24 “partially persuasive”—more specifically finding that while Dr. Fahnbulleh “support[ed] her

25 opinion with a discussion of her examination findings” and that “her opinion is partially consistent

26 with the record as a whole,” her opinion’s persuasiveness was limited because “her opinion is not

27 stated in vocationally relevant terms, and the greater record, including [Plaintiff’s] borderline

28 intellectual functioning is more consistent with a limitation to unskilled work.” (AR 35). As set

1 forth below, this reasoning is flawed.

2 First, the ALJ stated that Dr. Fahnbulleh’s opinion was “partially persuasive.” (Id.) Yet,

3 from the ALJ’s vague analysis, it is wholly unclear which aspects of Dr. Fahnbulleh’s opinion the

4 ALJ found persuasive and which aspects the ALJ rejected. As relevant to the litigation at bar, in

5 reviewing the ALJ’s decision, it is not clear if, and, if so, on what basis, the ALJ rejected Dr.

6 Fahnbulleh’s opinion that Plaintiff had moderate limitations as to maintaining attendance and

7 completing a normal workday and work week. This is in error. ALJ’s are obligated to “provide ‘an

8 “adequate discussion”’ of [their] finding as to a medical opinion’s persuasiveness,” in order for “the

9 court to undertake a meaningful review of whether his finding with regard to the particular medical

10 opinion was supported by substantial evidence.” Ward v. O’Malley, No. 2:22-CV-1771 DB, 2024

11 WL 922897, at *4 (E.D. Cal. Mar. 1, 2024) (quoting Cooley v. Commissioner of Social Security, 587

12 F.Supp.3d 489, 499 (S.D. Miss. 2021)); David L. v. Kijakazi, No. EDCV 20-1869-KK, 2021 U.S.

13 Dist. LEXIS 184751, at *16 (C.D. Cal. Sep. 27, 2021) (“[T]he ALJ was required to either include

14 the limitations regarding attendance and the completion of a normal workday and workweek in

15 Plaintiff’s RFC assessment or provide legally sufficient reasons for rejecting them.”). When, as

16 here, an ALJ does not provide an “adequate discussion” of their assessment as to the persuasiveness

17 of an opinion, the court is unable to engage in “meaningful review,” and is instead left to “merely

18 speculate about the reasons behind the ALJ’s persuasiveness finding or lack thereof.” Id. Such

19 speculation cannot form the basis for finding an ALJ’s decision is supported by substantial evidence.

20 Second, even assuming the ALJ rejected the persuasiveness of Dr. Fahnbulleh’s opinion as

21 to Plaintiff’s moderate limitations in maintaining attendance and completing a normal workday, the

22 ALJ’s stated reasons for finding Dr. Fahnbulleh’s opinion only partially persuasive are not supported

23 by substantial evidence. The two reasons the ALJ gave as to why Dr. Fahnbulleh’s opinion was not

24 wholly persuasive are (1) Dr. Fahnbulleh’s opinion was “not stated in vocationally relevant terms,”

25 and (2) “the greater record, including the claimant’s borderline intellectual functioning[,] is more

26 consistent with a limitation to unskilled work.” (AR 35.) The Court considers each in turn.

27 As to the ALJ’s finding that Dr. Fahnbulleh did not phrase her opinion in “vocationally

28 relevant terms,” the Court finds that reasoning is flawed. Limitations to a person’s ability to maintain

1 regular attendance and to attend work and complete a regular workday and workweek are

2 vocationally relevant. And insofar as the ALJ meant that the use of the term “moderate” in reference

3 to Plaintiff’s limitations was not credible because it failed to provide an assessment of concrete

4 limitations, the ALJ also erred. “Moderate” is an ordinary, familiar word that is regularly used by

5 “[c]ourts, physicians, vocational experts . . . and other ALJs . . . to describe and assess claimants’

6 limitations without any difficulty.” King v. Comm’r of Soc. Sec. Admin., 475 F. App’x 209, 210 (9th

7 Cir. 2012) (Reinhardt, J., dissenting); see also Vincent L.P. v. Saul, 2021 WL 2209674, at *4 (C.D.

8 Cal. May 31, 2021) (recognizing that doctor’s use of term “moderate” was not “vague” since terms

9 like “mild,” “moderate,” “marked,” and “severe” are commonly used to describe social security

10 claimant's limitations); Lisardo S. v. Berryhill, 2019 WL 773686, at *6 (C.D. Cal. Feb. 20, 2019)

11 (ALJ erred in discounting examining physician’s opinion by finding use of the term “moderate” was

12 “vague and unclear” because it was not defined and did not specify functional abilities) (citing, e.g.,

13 Vasquez v. Berryhill, 2017 WL 2633413, at *7 (E.D. Cal. June 19, 2017) (ALJ could not properly

14 reject examining physician’s opinion that claimant had moderate limitations by stating that the

15 definition of the term “moderate” was “vague and ambiguous”); Dean v. Colvin, 2015 WL 6158874,

16 at *7 (W.D. Wash. Sept. 29, 2015) (ALJ improperly rejected physician’s opinion of functional

17 limitations as “mild” and “moderate” on ground that terms were “too vague to be useful”), report

18 and recommendation adopted, 2015 WL 6158913 (W.D. Wash. Oct. 19, 2015)). And because it is

19 an ALJ’s role to translate medical opinions into an RFC formulation “consistent with restrictions

20 identified in the medical testimony,” it is inappropriate for an ALJ to find a medical opinion less

21 persuasive because it used a common term like “moderate limitation.” Stubbs-Danielson v. Astrue,

22 539 F.3d 1169, 1174 (9th Cir. 2008). Thus, Dr. Fahnbulleh’s use of the term “moderate” in

23 describing Plaintiff’s limitations was not too vague to assess Plaintiff’s concrete limitations.

24 The Commissioner points to several cases in which courts have held that a moderate

25 limitation as to maintaining attendance is not inherently inconsistent with an RFC that does not

26 expressly incorporate that limitation. (See Doc. 16 at 10.) The logic of that line of cases is that

27 “[w]orking on a ‘regular and continuing basis’ is not inconsistent with occasional absenteeism, i.e.,

28 a “moderate” level of absenteeism that is ‘more than slight, but the individual can still function

1 satisfactorily” and that an “ALJ’s failure to modify the ‘default’ position of any RFC (i.e., the RFC

2 states the most a claimant can do ‘on a regular and continuing basis’) did not constitute a ‘rejection’

3 [of a medical opinion assessing moderate limitations as to maintaining attendance].” Fergerson v.

4 Berryhill, No. 5:17-CV-00161-KES, 2017 WL 5054690, at *4 (C.D. Cal. Nov. 1, 2017). Those

5 cases are distinguishable.

6 The logic of Ferguson and similar cases is that an ALJ’s failure to modify the default position

7 of an RFC is not necessarily a rejection of a medical opinion finding moderate limitations to

8 maintaining attendance; therefore, a lack of explanation as to why an ALJ rejected such a limitation

9 would not be necessary. But here, the Court is considering whether the ALJ could reject Dr.

10 Fahnbulleh’s opinion based on reasoning that the opinion was stated in terms that are “not

11 vocationally relevant.”

12 The Court next turns to the ALJ’s reasoning that “the greater record, including the claimant’s

13 borderline intellectual functioning is more consistent with a limitation to unskilled work.” (AR 35.)

14 The Court finds the statement as to the relative consistency of Dr. Fahnbulleh’s opinion with the

15 overall record irrelevant to an evaluation of the persuasiveness of the specific components of Dr.

16 Fahnbulleh’s opinion at issue here. There is nothing inherently inconsistent between a finding of

17 borderline intellectual functioning and Dr. Fahnbulleh’s opinion that Plaintiff has moderate

18 limitations as to maintaining attendance and completing a normal workday and workweek. Nor

19 would a limitation to unskilled work account for Dr. Fahnbulleh’s opinions as to attendance and

20 completion of a normal workday and workweek. See Raymond v. Berryhill, No. 17-CV-01112, 2018

21 WL 3691842, at *6 (C.D. Cal. Aug. 2, 2018) (explaining that, while a restriction to unskilled work

22 “may encompass . . . moderate limitations in concentration, persistence, and pace,” it “does not

23 sufficiently account for . . . moderate limitations in performing routine work duties and maintaining

24 consistent attendance in the workplace”). And, indeed, the agency’s own internal Program

25 Operation Manual System (“POMS”), provide that the ability to “maintain regular attendance and

26 be punctual within customary tolerances” and the ability to “sustain an ordinary routine without

27 special supervision” are all “critical” for performing unskilled work. See POMS DI

28 25020.010(B)(3)(e), (f), (k).

1 In sum, the Court finds that the ALJ’s failure to explain its evaluation of the persuasiveness

2 of Dr. Fahnbulleh’s opinion that Plaintiff has moderate limitations in maintaining attendance and

3 completing a normal workday and workweek to a degree that would allow this Court to engage in

4 meaningful review was error. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (a

5 court “cannot substitute [its] conclusions for the ALJ’s, or speculate as to the grounds for the ALJ’s

6 conclusions. Although the ALJ’s analysis need not be extensive, the ALJ must provide some

7 reasoning in order for [the court] to meaningfully determine whether the ALJ’s conclusions were

8 supported by substantial evidence.”). Accordingly, on remand, the ALJ shall re-evaluate Dr.

9 Fahnbulleh’s opinion and more thoroughly explain the reasons for partially rejecting Dr.

10 Fahnbulleh’s opinion, if such a conclusion is warranted.

11 A. The ALJ’s Error was not harmless.

12 The Court must now consider whether the ALJ’s error was harmless. Molina, 674 F.3d at

13 1115. Courts look to the record as a whole to determine whether the error alters the outcome of the

14 case. Id.; March v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). An error is harmless “where it is

15 inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115 (citations

16 omitted) (first quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998), and then quoting Rohan

17 v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)).

18 The Court cannot conclude that the error is harmless as it is not clear whether inclusion of

19 this moderate limitation as opined by Dr. Fahnbulleh would have eliminated available jobs.

20 Moderate limitations are not per se disabling, but they may translate into more concrete work

21 restrictions. See Macquarrie, 2023 WL 8242069, at *7. For example, the VE testified that if an

22 individual would be absent from work two days a month, there would not be any work available in

23 the national economy that Plaintiff could perform. (AR 130 (VE testifying that absence from work

24 for two or more days per month “would preclude all competitive work at all exertional levels” and

25 that “[n]o more than one day per month would be allowable for employees”).)

26 In a case where the ALJ’s determination is not supported by substantial evidence or is tainted

27 by legal error, the court may remand the matter for additional proceedings or an immediate award

28 of benefits. Remand for additional proceedings is proper where (1) outstanding issues must be

1 resolved, and (2) it is not clear from the record before the court that a claimant is disabled. See

2 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).

3 Here, the Court finds that remand for further proceedings is warranted. See Osborne v.

4 Commissioner of Soc. Sec., No. 1:22-CV-01538-EPG, 2024 WL 1312202, at *5 (E.D. Cal. Mar. 27,

5 2024) (remanding for further proceedings where the ALJ relied on their own judgment in assessing

6 the RFC without the support of any medical opinion evidence). On remand, the Commissioner shall

7 further develop the record, as outlined above, to allow for proper consideration of the medical

8 evidence related to the time period at issue.

9 V. CONCLUSION AND ORDER

10 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by

11 substantial evidence and is therefore VACATED, and the case is REMANDED to the ALJ for

12 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter

13 judgment in favor of Plaintiff Lacarra N. Myles and against Defendant Frank Bisignano,

14 Commissioner of Social Security.

15

IT IS SO ORDERED.

16

17 Dated: October 20, 2025 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

18

19

20

21

22

23

24

25

26

27

28