1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KRISHNA NAMBI, Case No. 20-cv-06360-AGT

8 Plaintiff, ORDER ON CROSS MOTIONS FOR 9 v. SUMMARY JUDGMENT

10 KILOLO KIJAKAZI, Re: Dkt. Nos. 27, 28 Defendant. 11

12 13 Plaintiff Krishna Nambi applied for and was denied disability benefits and supplemental 14 security income under the Social Security Act. Now, on judicial review of the ALJ’s decision 15 denying benefits, Nambi argues that the ALJ committed reversible error by failing to address or 16 account for numerous moderate mental limitations found by state agency consulting psychiatrist 17 Dr. K. Econome, the only doctor whose opinion the ALJ found fully persuasive, when assessing 18 Nambi’s residual functional capacity (“RFC”). As explained below, the Court agrees. 19 The ALJ “is responsible for translating and incorporating clinical findings into a succinct 20 RFC.” Rounds v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2015). “In determining 21 a claimant’s RFC, an ALJ must consider all relevant evidence in the record.” Robbins v. Soc. Sec. 22 Admin.,

(9th Cir. 2006). “[A]n RFC that fails to take into account a claimant’s 23 limitations is defective.” Valentine v. Comm’r Soc. Sec. Admin.,

(9th Cir. 24 2009). Further, “[t]he hypothetical an ALJ poses to a vocational expert, which derives from the 25 RFC, ‘must set out all the limitations and restrictions of the particular claimant.’”

“Where an 26 ALJ accords substantial or great weight to a physician’s opinion, he must either incorporate their 27 findings into the RFC or offer an explanation for why he chose not to accept them.” Macias v. 1 Here, the ALJ found that Nambi suffered from severe impairments of type 2 diabetes, 2 hypertension, depressive disorder, and alcohol use disorder. AR 24. The ALJ also found that 3 Nambi had the RFC to perform “medium work” with the following exceptions:

4 [T]he claimant . . . can lift or carry 50 pounds occasionally and 25 pounds frequently. He can sit for six hours in an eight-hour day, and 5 stand or walk for six hours in an eight-hour day. The claimant can never work at unprotected heights. The claimant is able to perform 6 simple, routine tasks, and can occasionally interact with the public. 7 AR 27. The ALJ used this RFC in the hypothetical questions he posed to the vocational expert. 8 AR 58–59. Relying on the testimony of the vocational expert, the ALJ found that Nambi could 9 perform the jobs of machine feeder, cleaner, and store laborer. AR 34. Accordingly, the ALJ 10 concluded that Nambi was not disabled. AR 34–35. 11 In formulating Nambi’s RFC, the ALJ found the opinion of state agency consulting 12 psychiatrist Dr. Econome “persuasive” and “consistent with the evidence.”1 AR 30. Dr. Econome 13 opined that Nambi was moderately impaired in his abilities to: (1) maintain attention and 14 concentration for extended periods; (2) perform activities within a schedule, maintain regular 15 attendance, and be punctual within customary tolerances; (3) work in coordination with or in 16 proximity to others without being distracted by them; (4) complete a normal workday and 17 workweek without interruptions from psychologically based symptoms and perform at a consistent 18 pace without an unreasonable number and length of rest periods; (5) interact appropriately with the 19 general public; (6) accept instructions and respond appropriately to criticism from supervisors; (7) 20 get along with coworkers or peers without distracting them or exhibiting behavioral extremes; (8) 21 respond appropriately to changes in the work setting; and (9) set realistic goals or make plans 22 independently of others. AR 88–89. Dr. Econome also opined that “[e]ven [with] some 23 impairment and even [alcohol] abuse, [Nambi] should be capable of [simple repetitive tasks] 24 [with] [limited public contact].” AR 87. 25 Nambi argues that the ALJ’s RFC “utterly fails to account for [his] moderate inability to 26

27 1 The ALJ found the other mental health opinion evidence to be only partially persuasive, as in the 1 maintain a schedule, maintain attendance, be punctual, work with others or work independently, 2 respond to supervision or work changes, or complete a workday or workweek,” and that this 3 failure constitutes “harmful, legal error.” Dkt. 27 at 10. The Court agrees. Courts in this District 4 have repeatedly held that an ALJ is required to either explicitly reject or include in the RFC the 5 same moderate limitations Dr. Econome assessed in this case. See Warren v. Saul,

259435, at *5 (C.D. Cal. Jan. 26, 2021) (collecting cases); see also Morinskey v. Astrue,

App’x 640, 641 (9th Cir. 2011) (holding that ALJ erred in omitting consultant’s opinion that the 8 plaintiff was moderately impaired in his abilities to maintain regular attendance, sustain an 9 ordinary routine, and complete a normal workday or workweek without interruption without 10 providing an explanation for why these limitations were not included in the RFC, despite claiming 11 to give great weight to those assessments); Bain v. Astrue,

, 545–46 (9th Cir. 12 2009) (same, where one of the moderate limitations was in the plaintiff’s “ability to respond 13 appropriately to changes in the work setting”). 14 The Commissioner does not contest that the ALJ’s RFC fails to include or explicitly reject 15 these moderate mental limitations assessed by Dr. Econome. Instead, the Commissioner asserts, 16 without any further explanation or analysis, that the moderate limitations found by Dr. Econome 17 “do not specify Plaintiff’s functional limitations.” Dkt. 28 at 3. The Commissioner also argues 18 that “the ALJ did not ignore Dr. Econome’s findings of moderate limitation” because Dr. Econome 19 found Nambi capable of simple repetitive tasks with limited public contact “which the ALJ then 20 properly relied on in assessing the RFC.” Id. at 4. Neither argument is persuasive, and the 21 Commissioner’s reliance on Stubbs-Danielson v. Astrue,

(9th Cir. 2008), fails to 22 recognize that “the Ninth Circuit and district courts in the Ninth Circuit have held that Stubbs- 23 Danielson does not control in cases where the limitations relate to functional areas other than 24 concentration, persistence, and pace, such as social functioning and attendance.” Panziera v. 25 Berryhill,

, at *20 (N.D. Cal. Jan. 3, 2018) (collecting cases). The fact remains 26 that the RFC limiting Nambi to simple routine tasks with limited public interaction does not 27 account for Dr. Econome’s findings of moderate limitations in Nambi’s abilities to complete a ] accept criticism from supervisors, and get along with coworkers. “[T]he ALJ was required to 2 || either include these limitations in [Nambi’s] RFC assessment or provide legally sufficient reasons 3 for rejecting them.” Warren,

, at *6. The ALJ did neither and that was error. 4 “While moderate limitations are not per se disabling, they may translate into concrete work 5 restrictions which, when considered in connection with [Nambi’s] other restrictions, may render 6 || him disabled.” Timothy B. v. Saul,

, at *5 (N.D. Cal. Jan. 20, 2022). On the 7 || current record, the Court “cannot say that the ALJ’s failure to address or account for the moderate 8 limitations were not inconsequential to the ultimate determination of disability.” Gentry S. v. 9 || Kijakazi,

, at *13 (N.D. Cal. Mar. 31, 2022); cf Robbins,

10 || (holding that an ALJ’s error is harmless if it was “inconsequential to the ultimate nondisability 11 determination”) (citation omitted). Because it is possible that fully capturing Nambi’s moderate 12 mental limitations into the RFC could render him disabled, the ALJ’s error was not harmless. E 13 The issues concerning the moderate limitations opined to by Dr. Econome “should be 14 || resolved through further proceedings on an open record before a proper disability determination 3 15 can be made by the ALJ in the first instance.” See Brown-Hunter v. Colvin,

, 496 16 || (9th Cir. 2015); see also Treichler v. Comm’r of Soc. Sec. Admin.,

(9th Cir. i 17 || 2014) (“Where there is conflicting evidence, and not all essential factual issues have been Z 18 || resolved, a remand for an award of benefits is inappropriate.”). Accordingly, this case is 19 || remanded for further proceedings, not for payment of benefits. 20 ok 21 Nambi’s motion for summary judgment is granted and the Commissioner’s cross-motion is 22 || denied. This case is remanded to the Commissioner for further proceedings consistent with this 23 order. 24 IT IS SO ORDERED. 25 Dated: March 30, 2023 26 ALEX G. TSE 27 United States Magistrate Judge 28