1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL TIBBETTS, Case No. 3:22-cv-00898-JD

8 Plaintiff, ORDER RE SUMMARY JUDGMENT v. 9

10 KILOLO KIJAKAZI, Defendant. 11

12 Plaintiff Michael Tibbetts challenges a decision by a Social Security Administration (SSA) 13 administrative law judge (ALJ) that denied his application for disability benefits under Title II and 14 Title XVI of the Social Security Act. Dkt. No. 1. The parties filed cross-motions for summary 15 judgment. Dkt. Nos. 13, 14. Tibbetts also filed a reply brief in opposition to the Commissioner’s 16 cross-motion and in support of his motion for summary judgment. Dkt. No. 15. Tibbetts’s motion 17 is granted, and the case is remanded to the SSA for further proceedings consistent with this order. 18 Defendant’s motion is denied. 19 In a decision dated December 29, 2020, the ALJ found that Tibbetts suffers from a number 20 of severe impairments, including “right wrist radial motor palsy; left knee degenerative joint 21 disease; obesity; and anxiety disorder.” Administrative Record, Dkt. No. 12-3 (AR) at 17. The 22 ALJ also found that Tibbetts suffers from a number of mental impairments, namely, “mild 23 limitation in the area of understanding, remembering, or applying information” and “moderate 24 limitation in the area of concentrating, persisting, or maintaining pace.” AR 18. The ALJ found 25 that Tibbetts has the residual functional capacity (RFC) to perform “medium work” with the 26 following limitations:

27 [L]ift or carry occasionally 50 pounds, frequently 35 pounds and continuously 25 hours of an 8 hour workday; occasionally climb ladders, ropes or scaffolding; 1 frequently climb ramps or stairs; frequently stoop, squat, crouch or kneel; can 2 continuously reach overhead and straight out to the front, grasp, grip, and handle; can continuously use a keyboard and mouse; cognitively capable of understanding 3 complex tasks; can maintain attention to job duties for 95% of the workday; and no exposure to unguarded heights. 4 5 AR 19. Given Tibbetts’s RFC, the ALJ concluded that he “is capable of performing past relevant 6 work as a plasterer” and that consequently he was not disabled under sections 216(i) and 223(d) of 7 the Social Security Act,

(i), 423(d). See Woods v. Kijakazi,

, 787 n.1 8 (9th Cir. 2022) (“[A] claimant is not disabled if her residual functional capacity allows her to 9 perform past relevant work.”). 10 Judicial review will disturb an ALJ’s decision to deny benefits only “if it is not supported 11 by substantial evidence or it is based on legal error” that is not harmless. Burch v. Barnhart, 400

(9th Cir. 2005) (internal quotation and citation omitted). 13 Tibbetts argues that the ALJ erred by failing to address the mild and moderate mental 14 impairments that he found credible when formulating the RFC assessment. Dkt. No. 13 at 5-12. 15 According to Tibbetts, the issue is not that the ALJ was categorically required to include 16 limitations in the RFC that corresponded to his mental impairments, but that the ALJ “fail[ed] to 17 explain how [his] mild to moderate mental limitations would impact [his] ability to perform his 18 past relevant skilled work.” Dkt. No. 15 at 2. The Commissioner responds that “the ALJ 19 accommodated [Tibbetts’s] mental limitations by assessing he could maintain attention to job 20 duties for most, but not all, of the workday” -- that is, 95% of the workday. Dkt. No. 14 at 5 21 (citing AR 19). 22 “In determining a claimant’s residual functional capacity, the ALJ must consider all of a 23 claimant’s medically determinable impairments, including those that are not severe.” Ghanim v. 24 Colvin,

(9th Cir. 2014) (citing

(a)(2)). While the ALJ 25 said that his RFC assessment “reflect[ed] the degree of limitation [he] found in the . . . mental 26 function analysis,” AR 18, and included one attention-related limitation, AR 19, the ALJ did not 27 directly confront Tibbetts’s mild and moderate mental impairments in the RFC assessment. At 1 that Dr. Ute Kollath -- whose opinion he found persuasive -- “examined the claimant and noted 2 || adequate concentration but impaired attention as indicated by the claimant’s recall of 3 out of 4 3 digits in reverse.” AR 21; see also AR 625-28 (report of Dr. Kollath). But Dr. Kollath also 4 || concluded that Tibbetts was impaired in his ability to maintain adequate pace or persistence to 5 perform complex tasks, mildly impaired in his ability to follow complex/detailed instructions, and 6 || moderately impaired in his ability to maintain adequate attention/concentration. AR 628. Because 7 || the ALJ did not explain how he accounted for Tibbetts’s mental impairments, the Court cannot be 8 sure that he fulfilled his obligation to consider those impairments -- including as documented in an 9 opinion he found persuasive -- in conducting the RFC assessment. 10 This error was not harmless. Our circuit has stated that an error is harmless only “when it 11 was Clear from the record that an ALJ’s error was inconsequential to the ultimate nondisability 12 determination.” Robbins v. Soc. Sec. Admin.,

(9th Cir. 2006) (internal 5 13 quotation and citation omitted). On this record, the Court cannot say that the error was 14 || inconsequential. Because this alone is sufficient for remand, the Court declines to reach Tibbetts’s 3 15 other arguments of error in the ALJ’s decision. 16 CONCLUSION 3 17 The ALJ’s decision to deny benefits is vacated, and the case is remanded to the SSA for 18 || further consideration of Tibbetts’s application in a manner consistent with this order. 19 IT IS SO ORDERED. 20 Dated: November 4, 2022 21 22 JAMES/PDONATO 23 United Jtates District Judge 24 25 26 27 28