Weiman v. Kijakazi ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Curt. G. W., Case No. 2:23-cv-01148-DJA 6 Plaintiff, 7 Order v. 8 Martin O’Malley1, Commissioner of Social 9 Security, 10 Defendant. 11 12 Before the Court is Plaintiff Curt G. W.’s brief for remand (ECF No. 8). The 13 Commissioner filed a response (ECF No. 10) and Plaintiff filed a reply (ECF No. 11). Because 14 the Court finds that the ALJ erred at step two, in creating the RFC, and in finding Plaintiff’s 15 testimony to be non-credible, the Court grants Plaintiff’s brief for remand (ECF No. 8). The 16 Court finds these matters properly resolved without a hearing. LR 78-1. 17 BACKGROUND 18 I. Procedural history. 19 Plaintiff filed an application for a period of disability and disability insurance benefits on 20 July 14, 2021, alleging disability commencing April 14, 2021. (ECF No. 8 at 3). The 21 Commissioner denied the claim initially and on reconsideration. (Id.). Plaintiff requested a de 22 novo hearing before an Administrative Law Judge on May 24, 2022. (Id.). The ALJ published an 23 unfavorable decision on November 1, 2022. (Id.). The Appeals Council denied Plaintiff’s 24 request for review on June 9, 2023, making the ALJ’s decision the final decision of the 25 Commissioner. (Id.). 26 27 1 II. The ALJ decision. 2 The ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. 3 § 404.1520(a). (AR 70-84). At step one, the ALJ found that Plaintiff had not engaged in 4 substantial gainful activity since April 14, 2021, the alleged onset date. (AR 73). At step two, the 5 ALJ found that Plaintiff has the following severe impairments: ischemic heart disease and 6 obesity. (AR 73). At step three, the ALJ found that Plaintiff did not have an impairment or 7 combination of impairments that meets or medically equals the severity of one of the listed 8 impairments in 20 C.F.R. 404, Subpart P, Appendix 1. (AR 75). In making this finding, the ALJ 9 considered Listing 4.01 and Social Security Regulation (“SSR”) 19-2p. (AR 75). 10 At step four, the ALJ found that Plaintiff has an RFC to perform light work as defined in 11 20 C.F.R. § 404.1567(b) subject to the following limitations: 12 [Plaintiff] occasionally can stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds. He occasionally can 13 operate a motor vehicle and work at unprotected heights and can 14 have occasional exposure to vibration and non-atmospheric extremes of cold and heat. 15 16 (AR 75). 17 At step five, the ALJ found that Plaintiff was unable to perform past relevant work but 18 that Plaintiff could perform occupations such as cashier II, sales attendant, housekeeping cleaner, 19 ticket seller, bench assembler. (AR 82). Accordingly, the ALJ found that Plaintiff had not been 20 disabled from April 14, 2021, through the date of the decision. (AR 83). 21 STANDARD 22 The court reviews administrative decisions in social security disability benefits cases 23 under 42 U.S.C. § 405(g). See Akopyan v. Barnhard, 296 F.3d 852, 854 (9th Cir. 2002). Section 24 405(g) states, “[a]ny individual, after any final decision of the Commissioner of Social Security 25 made after a hearing to which he was a party, irrespective of the amount in controversy, may 26 obtain a review of such decision by a civil action…brought in the district court of the United 27 States for the judicial district in which the plaintiff resides.” The court may enter, “upon the 1 decision of the Commissioner of Social Security, with or without remanding the case for a 2 rehearing.” Id. The Ninth Circuit reviews a decision of a District Court affirming, modifying, or 3 reversing a decision of the Commissioner de novo. Batson v. Commissioner, 359 F.3d 1190, 4 1193 (9th Cir. 2003). 5 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 6 See 42 U.S.C. § 405(g); Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the 7 Commissioner’s findings may be set aside if they are based on legal error or not supported by 8 substantial evidence. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 9 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines 10 substantial evidence as “more than a mere scintilla but less than a preponderance; it is such 11 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 12 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 13 1211, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner’s findings are 14 supported by substantial evidence, the court “must review the administrative record as a whole, 15 weighing both the evidence that supports and the evidence that detracts from the Commissioner’s 16 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Smolen v. Chater, 80 17 F.3d 1273, 1279 (9th Cir. 1996). Under the substantial evidence test, findings must be upheld if 18 supported by inferences reasonably drawn from the record. Batson, 359 F.3d at 1193. When the 19 evidence will support more than one rational interpretation, the court must defer to the 20 Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten 21 v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). 22 DISABILITY EVALUATION PROCESS 23 The individual seeking disability benefits has the initial burden of proving disability. 24 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995). To meet this burden, the individual must 25 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 26 determinable physical or mental impairment which can be expected . . . to last for a continuous 27 period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). More specifically, the individual 1 § 404.1514. If the individual establishes an inability to perform her prior work, then the burden 2 shifts to the Commissioner to show that the individual can perform other substantial gainful work 3 that exists in the national economy. Reddick, 157 F.3d at 721. 4 The ALJ follows a five-step sequential evaluation process in determining whether an 5 individual is disabled. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If 6 at any step the ALJ determines that she can make a finding of disability or non-disability, a 7 determination will be made, and no further evaluation is required. See 20 C.F.R. 8 § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Step one requires the ALJ to 9 determine whether the individual is engaged in substantial gainful activity (“SGA”). 20 C.F.R. 10 § 404.1520(b). SGA is defined as work activity that is both substantial and gainful; it involves 11 doing significant physical or mental activities usually for pay or profit. Id. § 404.1572(a)-(b). If 12 the individual is engaged in SGA, then a finding of not disabled is made. If the individual is not 13 engaged in SGA, then the analysis proceeds to step two. 14 Step two addresses whether the individual has a medically determinable impairment that 15 is severe or a combination of impairments that significantly limits her from performing basic 16 work activities. Id. § 404.1520(c). An impairment or combination of impairments is not severe 17 when medical and other evidence establishes only a slight abnormality or a combination of slight 18 abnormalities that would have no more than a minimal effect on the individual’s ability to work. 19 Id. § 404.1521; see also Social Security Rulings (“SSRs”) 85-28. If the individual does not have 20 a severe medically determinable impairment or combination of impairments, then a finding of not 21 disabled is made. If the individual has a severe medically determinable impairment or 22 combination of impairments, then the analysis proceeds to step three. 23 Step three requires the ALJ to determine whether the individual’s impairments or 24 combination of impairments meet or medically equal the criteria of an impairment listed in 20 25 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If 26 the individual’s impairment or combination of impairments meet or equal the criteria of a listing 27 and the duration requirement (20 C.F.R. § 404.1509), then a finding of disabled is made. 20 1 meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds 2 to step four. 3 Before moving to step four, however, the ALJ must first determine the individual’s RFC, 4 which is a function-by-function assessment of the individual’s ability to do physical and mental 5 work-related activities on a sustained basis despite limitations from impairments. See 20 C.F.R. 6 § 404.1520(e); see also SSR 96-8p. In making this finding, the ALJ must consider all the 7 relevant evidence, such as all symptoms and the extent to which the symptoms can reasonably be 8 accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. § 9 404.1529; see also SSR 16-3p. To the extent that statements about the intensity, persistence, or 10 functionally limiting effects of pain or other symptoms are not substantiated by objective medical 11 evidence, the ALJ must evaluate the individual’s statements based on a consideration of the entire 12 case record. The ALJ must also consider opinion evidence in accordance with the requirements 13 of 20 C.F.R. § 404.1527. 14 Step four requires the ALJ to determine whether the individual has the RFC to perform 15 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(f). PRW means work performed either 16 as the individual actually performed it or as it is generally performed in the national economy 17 within the last fifteen years or fifteen years before the date that disability must be established. In 18 addition, the work must have lasted long enough for the individual to learn the job and performed 19 at SGA. 20 C.F.R. §§ 404.1560(b) and 404.1565. If the individual has the RFC to perform her 20 past work, then a finding of not disabled is made. If the individual is unable to perform any PRW 21 or does not have any PRW, then the analysis proceeds to step five. 22 Step five requires the ALJ to determine whether the individual can do any other work 23 considering her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g). If she can 24 do other work, then a finding of not disabled is made. Although the individual generally 25 continues to have the burden of proving disability at this step, a limited burden of going forward 26 with the evidence shifts to the Commissioner. The Commissioner is responsible for providing 27 evidence that demonstrates that other work exists in significant numbers in the national economy 1 ANALYSIS AND FINDINGS. 2 I. Whether the ALJ erred by not finding Plaintiff’s back impairment severe. 3 A. The parties’ arguments. 4 Plaintiff argues that the ALJ erred at step two by not finding that Plaintiff’s back 5 impairment is severe, despite Plaintiff submitting evidence demonstrating the severity of the 6 impairment. (ECF No. 8 at 5-7). Plaintiff points to evidence and records that he submitted to the 7 Appeals Council to show that the ALJ erred in finding that Plaintiff’s back impairment was not 8 severe. (Id.). Plaintiff asserts that the Appeals Council considered the evidence without 9 elaboration and concluded that the evidence did not show a reasonable probability that the 10 evidence would change the outcome of the decision. (Id.). Plaintiff argues that the Court must 11 consider the evidence he submitted for the first time to the Appeals Council. (Id.). Plaintiff 12 concludes that the ALJ’s error was not harmless “because proper evaluation of this impairment 13 may warrant additional limitations.” (Id.). 14 The Commissioner responds that the step two analysis is not meant to identify the 15 impairments that the ALJ should consider when determining the RFC. (ECF No. 10 at 3-4). 16 Instead, it is merely a threshold determination to screen out weak claims. (Id.). So, even if the 17 ALJ omitted Plaintiff’s back problems from the list of severe impairments, because the ALJ 18 ultimately decided step two in Plaintiff’s favor, Plaintiff was not prejudiced and thus, any alleged 19 error at step two is harmless. (Id.). 20 Plaintiff replies that, contrary to the Commissioner’s assertion, the ALJ did not adequately 21 consider all of Plaintiff’s medically determinable impairments, including those that are not 22 severe, when assessing Plaintiff’s RFC. (ECF No. 11 at 3-5). Plaintiff argues for the first time in 23 reply that, although the ALJ stated that the RFC accounted for Plaintiff’s back pain, the ALJ 24 failed to explain how. (Id.). Plaintiff argues that no medical opinions analyzed any limitations 25 related to back pain. (Id.). So, even if the ALJ’s RFC did account for Plaintiff’s back pain, the 26 ALJ would have been relying on her lay opinion when coming up with it. (Id.). 27 1 B. Analysis. 2 At step two of the sequential evaluation, the ALJ determines which of Plaintiff’s alleged 3 impairments are “severe” within the meaning of 20 C.F.R. § 404.1520(c). A severe impairment is 4 one that “significantly limits” a claimant’s “physical or mental ability to do basic work activities.” 5 Id. An ALJ must consider all the evidence at step two to determine whether a medically 6 determinable impairment significantly limits the claimant’s ability to perform basic work 7 activities. Id. § 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 153 (1987). “An impairment or 8 combination of impairments may be found ‘not severe only if the evidence establishes a slight 9 abnormality that has no more than a minimal effect on an individual’s ability to work.’” Webb v. 10 Barnhart, 433 F.3d 683, 686–87 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 96–3p 11 (1996)). The purpose of step two is to operate as “a de minimis screening device to dispose of 12 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); see also Hoopai v. 13 Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (the step two finding is “merely a threshold 14 determination” that “only raises a prima facie case of a disability”); Buck v. Berryhill, 869 F.3d 15 1040, 1048–49 (9th Cir. 2017) (“Step two is merely a threshold determination meant to screen out 16 weak claims.”) (internal citations omitted). The plaintiff bears the burden of proof at step two to 17 show that an impairment qualifies as severe. Bowen, 482 U.S. at 146 n.5. 18 Step two is not meant to identify impairments that should be considered when determining 19 the RFC. Buck, 869 F.3d at 1048-49. In fact, in assessing the RFC, the adjudicator must consider 20 limitations and restrictions imposed by all of an individual’s impairments, even those that are not 21 “severe.” Id. “The RFC therefore should be exactly the same regardless of whether certain 22 impairments are considered ‘severe’ or not.” Id. (emphasis in original). Finally, if step two is 23 decided in favor of the plaintiff, the plaintiff is not prejudiced and any alleged step two error is 24 harmless. Id. 25 Considering the evidence that Plaintiff submitted to the Appeals Council, the Court finds 26 that the ALJ erred in not finding Plaintiff’s back pain to be severe. Indeed, the records that 27 Plaintiff submitted demonstrate that Plaintiff’s back pain is not a slight abnormality. Clinical 1 portions of the spine, indicating degenerative disc disease and noted that the disc protrusion 2 contacts the L5 nerve root and the S1 nerve root. (AR 19). The findings also included high-grade 3 foraminal stenosis. (AR 19). On exam, the notes found that Plaintiff had tenderness at his 4 lumbar spine and facet joint, decreased flexion and extension, decreased lateral bending, and 5 decreased rotation. (AR 21). In October of 2022, Plaintiff reported that he received injections, 6 but did not find much relief and still presented with decreased ranges of motion and tenderness. 7 (AR 25, 28). The doctors increased Plaintiff’s pain medication. (AR 29). Plaintiff reported in 8 November of 2022 that the increased pain medication was helping. (AR 32). 9 However, whether the ALJ’s error was harmless is a closer question. The ALJ ultimately 10 found step two in Plaintiff’s favor and explained that the RFC accounts for any potential back 11 pain. And the RFC does contain postural and movement limitations. The ALJ also noted 12 Plaintiff’s request for treatment for his back pain and inconsistent musculoskeletal findings in his 13 medical records when coming up with the RFC. (AR 78) (explaining that although Plaintiff 14 sought treatment for his back pain while reporting to the emergency room for chest pain, his 15 examinations were normal). 16 On the other hand, as Plaintiff points out, the ALJ did not explicitly state that the RFC 17 accommodated Plaintiff’s back pain. And even if the ALJ did make that explicit, the ALJ did not 18 rely on a medical opinion when creating limitations for back pain. But Plaintiff also raises this 19 argument for the first time in reply, depriving the Commissioner of the opportunity to respond. 20 Ultimately, the Court finds that the ALJ erred and that the error was not harmless. Given 21 the extent of Plaintiff’s back pain and the clinical findings in the records Plaintiff submitted to the 22 Appeals Council, the ALJ’s finding that Plaintiff’s back pain was not severe is not supported by 23 substantial evidence. This error was not harmless because, although the ALJ states that the RFC 24 accounts for Plaintiff’s back pain, it is not clear from reviewing the record how the RFC accounts 25 for Plaintiff’s back pain, particularly because the ALJ did not rely on medical opinions. The 26 Court thus grants Plaintiff’s motion to remand on this issue. 27 II. Whether the ALJ failed to articulate clear and convincing reasons for discounting 1 Plaintiff’s subjective complaints. 2 A. The parties’ arguments. 3 4 Plaintiff argues that the ALJ did not specifically identify the testimony he found to not be 5 credible and the evidence that undermined that testimony. (ECF No. 8 at 7-12). One example of 6 this, Plaintiff argues, was the way in which the ALJ mischaracterized the record in stating that 7 Plaintiff only recently reported significant episodes of fatigue and frequently denied weakness 8 and fatigue. (Id.). But in reality, Plaintiff reported fatigue as early as April 2021 and consistently 9 reported fatigue thereafter. (Id.). The ALJ also stated that Plaintiff did not appear to have been 10 referred to any cardiac rehabilitation program when really, Plaintiff participated in thirty six 11 cardiac rehabilitation program sessions from June 1, 2021 through August 25, 2021. (Id.). 12 Plaintiff adds that the ALJ discounted Plaintiff’s complaints in part due to the conservative nature 13 of Plaintiff’s treatment. (Id.). But Plaintiff argues that no doctors suggested a more aggressive 14 form of treatment and the record does not support the proposition that a more aggressive form of 15 treatment was available for a person with ischemic heart disease and obesity. (Id.). Plaintiff 16 argues that the ALJ also erred in using Plaintiff’s daily activities—namely, his ability to 17 exercise—to discount his subjective complaints. (Id.). Plaintiff argues that the ability to 18 exercise—after which exercise Plaintiff testified that he is tired and has to take a one or two hour 19 nap—is not transferrable to a work setting. (Id.). Plaintiff concludes by arguing that the ALJ’s 20 error in discounting Plaintiff’s subjective complaints was not harmless because proper evaluation 21 of Plaintiff’s subjective complaints could lead to a different result. (Id.). 22 The Commissioner responds that the ALJ’s consideration of Plaintiff’s subjective 23 complaints was sufficiently specific to permit the Court to conclude that the ALJ did not 24 arbitrarily discredit Plaintiff’ testimony. (ECF No. 10 at 4-6). The Commissioner points out that 25 the ALJ noted that Plaintiff’s conditions improved with treatment. (Id.). Specifically, the ALJ 26 noted that although Plaintiff claimed that his “body has never bounced b[ack]” after cardiac 27 surgery, the record shows that Plaintiff reported “feeling better” to his doctors, and that medical 1 shortness of breath, but also reported losing weight with exercise. (Id.). The Commissioner 2 argues that the “ALJ rationally concluded that a person with disabling fatigue and shortness of 3 breath would not be able to exercise enough to lose weight.” (Id.). The Commissioner adds that 4 the ALJ did not equate Plaintiff’s daily activities to a work environment, but noted that Plaintiff’s 5 daily activities contradicted his other testimony. (Id.). 6 Plaintiff replies that just because some of his records reflect improvement, that does not 7 mean that he can function in a workplace. (ECF No. 11 at 5-6). And even if Plaintiff improved 8 with treatment, Plaintiff argues that the ALJ erred by “discounting the testimony wholesale rather 9 than considering these complaints over different periods.” (Id.). Plaintiff reiterates that his daily 10 activities “do not undermine his subjective complaints.” (Id.). Plaintiff adds that “[t]he evidence 11 now of record documents significant involvement of the back,” but the ALJ limited her analysis 12 to the subjective complaints that she found severe, which did not include Plaintiff’s back pain. 13 (Id.). 14 B. Analysis. 15 The ALJ must make two findings before the ALJ can find a claimant’s pain or symptom 16 testimony not credible. 42 U.S.C. § 423(d)(5)(A) (explaining that “[a]n individual’s statement as 17 to pain or other symptoms shall not alone be conclusive evidence of disability” absent additional 18 findings). “First, the ALJ must determine whether the claimant has presented objective medical 19 evidence of an underlying impairment ‘which could reasonably be expected to produce the pain 20 or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) 21 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the claimant has 22 produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ 23 must provide “specific, clear and convincing reasons for” rejecting the claimant’s testimony 24 regarding the severity of the claimant’s symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th 25 Cir. 1996). 26 Because the “grounds upon which an administrative order must be judged are those upon 27 which the record discloses that its action was based,” the agency must explain its reasoning. 1 Commissioner of Social Security, 775 F.3d 1090, 1101 (9th Cir. 2014). The Ninth Circuit thus 2 requires the ALJ to “specifically identify the testimony [from a claimant] she or he finds not to be 3 credible and ... explain what evidence undermines the testimony.” Treichler, 775 F.3d at 1102 4 (citing Bunnell, 947 F.2d at 346 and Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)). 5 That means “[g]eneral findings are insufficient.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 6 1995) (superseded on other grounds); see Holohan, 246 F.3d at 1208 (concluding “that the ALJ’s 7 credibility determination was erroneous” because it was based on the ALJ’s characterization of 8 “the ‘record in general’”). 9 An ALJ must specifically identify the testimony he finds not credible and why. Treichler, 10 775 F.3d at 1102-1103. “An ALJ’s vague allegation that a claimant’s testimony is not consistent 11 with the objective medical evidence, without any specific findings in support of that conclusion is 12 insufficient for our review.” Id. (internal quotations omitted). “Although the ALJ’s analysis need 13 not be extensive, the ALJ must provide some reasoning in order for us to meaningfully determine 14 whether the ALJ’s conclusions were supported by substantial evidence.” Id. 15 Here the Court finds that the ALJ adequately specifically identified the testimony she 16 found not credible and why, however, the ALJ did mischaracterize some of the evidence. The 17 ALJ identified the testimony she found not credible, specifically, Plaintiff’s claims of fatigue, that 18 he could not stand or walk for more than thirty minutes, that he could not lift more than fifteen 19 pounds, that he may fall asleep while driving, and that he experienced dizziness and vertigo. (AR 20 76). The ALJ then pointed to specific portions of the evidence that were inconsistent with 21 Plaintiff’s testimony, including Plaintiff’s activities of daily living like his exercise. (AR 77-79). 22 However, as Plaintiff points out, the ALJ noted that Plaintiff “appears to have only 23 recently reported significant episodes of fatigue.” (AR 78). But Plaintiff points to notes showing 24 that he reported fatigue as early as April of 2021. See (AR 403) (note dated May 7, 2021 stating 25 that “[p]atient states he is able to ambulate around the house without any issues but still gets 26 fatigued after he walks around the neighborhood”); (AR 441) (note dated May 3, 2021 in which 27 Plaintiff admitted fatigue); (AR 444) (note dated June 9, 2021 in which Plaintiff admitted 1 1611) (note dated March 2, 2022, diagnosing fatigue); (AR 1618) (note dated December 15, 2021 2 diagnosing fatigue); (AR 1621) (note dated November 10, 2021 diagnosing fatigue); (AR 1629) 3 (note dated June 9, 2021 in which Plaintiff admitted fatigue); (AR 1633) (note dated May 3, 2021 4 in which Plaintiff admitted fatigue); (AR 1666) (note dated May 25, 2022 in which Plaintiff 5 admitted fatigue); (AR 1734) (note dated August 31, 2022 which discussed Plaintiff’s fatigue and 6 noted that the provider would withhold beta-blockers for two weeks to see if that was the culprit); 7 (AR 1749) (note dated September 7, 2022 in which Plaintiff noted that he used a walker for 8 fatigue); (AR 1752) (note dated September 21, 2022 in which Plaintiff noted that he used a 9 walker for fatigue). The ALJ also asserted that Plaintiff “does not appear to have been referred to 10 any cardiac rehabilitation program.” (AR 78). But Plaintiff points to records from a cardiac 11 rehabilitation program that Plaintiff attended for months. See (AR 1270-AR 1377) (notes from 12 Plaintiff’s cardiac rehabilitation program dated June 1, 2021 to August 25, 2021). The Court thus 13 finds that the ALJ erred in discounting Plaintiff’s subjective complaints. The Court remands the 14 case for further proceedings on this issue. 15 16 IT IS THEREFORE ORDERED that Plaintiff’s motion for remand (ECF No. 8) is 17 granted. The case shall be remanded for the ALJ to consider the impact of the records the 18 Plaintiff submitted to the Appeals Council on step-two of the five-step analysis and in creating the 19 RFC. The case shall also be remanded for the ALJ to re-evaluate the credibility of Plaintiff’s 20 subjective complaints with regard to his fatigue and engagement in cardiac rehabilitation. The 21 Clerk of Court is kindly directed to enter judgment accordingly and close this case. 22 23 DATED: June 12, 2024 24 DANIEL J. ALBREGTS 25 UNITED STATES MAGISTRATE JUDGE 26 27