Wayne M. v. Kijakazi, Case No. CV 22-55 CAS (MRW) (C.D. Ca. May 31, 2023) (R&R by Magistrate Judge Michael R. Wilner, adopted by Christina A. Snyder, Senior United States District Judge)

Wayne M. v. Kijakazi, Case No. CV 22-55 CAS (MRW) (C.D. Ca. May 31, 2023) (R&R by Magistrate Judge Michael R. Wilner, adopted by Christina A. Snyder, Senior United States District Judge)

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Briefs for purchase:

  • Joint Stipulation (with initial brief and reply brief)
  • Report and Recommendation
  • Remand order 

Issues briefed:
1) Whether the ALJ’s reasons for finding the opinion of Dr. Wexler, a treating

psychiatrist, not persuasive, are supported by substantial evidence.

  1. 2)  Whether the ALJ’s RFC assessment is supported by substantial evidence.

  2. 3)  Whether the ALJ properly evaluated Plainiff’s subjective complaints.

Court decision:
In the Report and Recommendation (R&R”), the Magistrate Judge found that the


ALJ’s decision “failed to provide adequate, reviewable reasons for the assessment of Plaintiff’s residual functional capacity (RFC)” which constituted reversible error. Slip. op. at 2. “As a result, the Court recommends that the agency’s determination be vacated, and the case remanded on an open record for further proceedings.” In so holding, the court explained:

Plaintiff convincingly demonstrates that the final RFC in the present action actually contains nuanced – but significantly – different limitations than the earlier iteration. The written decision failed to explain those differences in any meaningful way. As a result, the newer (and less favorable, from Plaintiff’s perspective) RFC constitutes error.

** *

The 2016 RFC contained a detailed explanation of the limitations that Plaintiff required to function in the workplace. The original ALJ (and the psychologists who subsequently agreed that those limits should apply with the current application) concluded that Plaintiff should have only “limited contact” and “superficial/incidental interaction” with the public and co-workers while on the job. However, the current RFC limited Plaintiff to “occasional contact” with others in the workplace, with a range of time of being off task during a workday. As Plaintiff notes (Docket # 20 at 23-24), the term “occasional” is defined in agency literature to incorporate a broad period of time (up to one-quarter to one-third of a workday). Fairly read, that’s much greater than the limits in the 2016 opinion; limited, superficial, incidental contact with others is surely less than that encompassed in the “occasional” parameter. . . .

Slip op. at 7. The Magistrate Judge noted that the “ALJ was obliged to lay out the reason(s) why the final RFC in fact varied from the earlier one.” Id. at 8 (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984); Ressler v. Berryhill, 687 F. App’x 560, 562 (9th Cir. 2019)). However, there was “no clear explanation in the written decision of the change from “limited” to “occasional” interaction in the workplace for this Court to review.” Id. There was also “no explanation of the oddly precise ‘off task’ daily percentage limitation that the ALJ set,” which was “error under Ninth Circuit authority.” Id. (citing Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014); Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)). The Magistrate Judge found the ALJ had “no basis to conclude that the error in setting and explaining the RFC was harmless,” noting that the “boilerplate reference to the medical evidence and the opinions of the record reviewers in the written decision is insufficient as a matter of law.” Id. (citing Brown-Hunter, 806 F.3d at 492). “Moreover, the transcript of the administrative proceeding reveals that the ALJ did not present the 2016 RFC to the vocational expert during the recent hearing.” Id.


Finally, the Magistrate Judge briefly addressed the other claims of error as follows:

Because the Court recommends remand of the action it declines to take up Plaintiff’s alternative claims of error. However, to the extent that the agency did not accept Plaintiff’s hearing testimony or the treating psychiatrist’s opinion (findings that appear to have been adequately explained and supported in the written decision), Plaintiff may augment the open record and address these issues on remand to the agency.

Id. at 9, n. 4. As no objections were filed, the district court adopted the R&R.

Topics addressed:

  • Medical opinions (new law) - persuasiveness

  • Medical opinion - definition of opinion

  • Specific impairments - bipolar disorder

  • RFC - required findings

  • RFC - lay evidence

  • RFC - off task findings

  • Subjective complaints - daily activities

    Rulings addressed:

  • Social Security Ruling 96-8p

  • Social Security Ruling 16-3p

  • Acquiescence Ruling 97-4(9)