(SS) Eilrich v. Commissioner of Social Security

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 SANDRA EILRICH, No. 2:21–cv–832 DAD-KJN

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

13 v. (ECF Nos. 28, 31.)

14 COMMISSIONER OF SOCIAL

SECURITY,

15

Defendant.

16

17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security

18 denying an application for Disability Insurance Benefits and Supplemental Security Income.1 In

19 his summary judgment motion, plaintiff contends the Administrative Law Judge erred in:

20 (A) resolving plaintiff’s non-severe impairments at step two; (B) resolving the opinions of a

21 medical source; and (C) resolving plaintiff’s subjective symptom testimony. Plaintiff seeks a

22 remand for further proceedings. The Commissioner opposed, filed a cross-motion for summary

23 judgment, and seeks affirmance. For the reasons that follow, the court recommends plaintiff’s

24 motion for summary judgment be DENIED, the Commissioner’s cross-motion be GRANTED,

25 and the final decision of the Commissioner be AFFIRMED.

26

1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15) for the issuance

27 of findings and recommendations. See Local Rule 304. Further, for ease of reading, the court

refers to Marc Eilrich (the original claimant) as the “plaintiff” even though he is deceased, and the

28 action has continued in the name of his wife and children.

1 I. RELEVANT LAW

2 The Social Security Act provides for benefits for qualifying individuals unable to “engage

3 in any substantial gainfu l activity” due to “a medically determinable physical or mental

4 impairment.” 42 U.S.C. §§ 423(d)(1)(a); 1382c(a)(3). An Administrative Law Judge (“ALJ”) is

5 to follow a five-step sequence when evaluating an applicant’s eligibility, summarized as follows:

6 Step one: Is the claimant engaging in substantial gainful activity? If so,

the claimant is found not disabled. If not, proceed to step two.

7 Step two: Does the clai mant have a “severe” impairment? If so, proceed

to step three. If not, then a finding of not disabled is appropriate.

8 Step three: Does the claimant’s impairment or combination of

impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404,

9 Subpt. P, App. 1? If so, the claimant is automatically determined disabled.

If not, proceed to step four.

10 Step four: Is the claimant capable of performing past relevant work? If

so, the claimant is not disabled. If not, proceed to step five.

11 Step five: Does the claimant have the residual functional capacity to

perform any other work? If so, the claimant is not disabled. If not, the

12 claimant is disabled.

13 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995); see also 20 C.F.R. §§ 404.1520(a)(4);

14 416.920(a)(4). The burden of proof rests with the claimant through step four, and with the

15 Commissioner at step five. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020).

16 A district court may reverse the agency’s decision only if the ALJ’s decision “contains

17 legal error or is not supported by substantial evidence.” Id. at 1154. Substantial evidence is more

18 than a mere scintilla, but less than a preponderance, i.e., “such relevant evidence as a reasonable

19 mind might accept as adequate to support a conclusion.” Id. The court reviews the record as a

20 whole, including evidence that both supports and detracts from the ALJ’s conclusion. Luther v.

21 Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). However, the court may review only the reasons

22 provided by the ALJ in the decision and may not affirm on a ground upon which the ALJ did not

23 rely. Id. “[T]he ALJ must provide sufficient reasoning that allows [the court] to perform [a]

24 review.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020).

25 The ALJ “is responsible for determining credibility, resolving conflicts in medical

26 testimony, and resolving ambiguities.” Ford, 950 F.3d at 1154. Where evidence is susceptible to

27 more than one rational interpretation, the ALJ’s conclusion “must be upheld.” Id. Further, the

28 court may not reverse the ALJ’s decision on account of harmless error. Id.

1 II. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS

2 Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income in

3 June of 2005. (Administ r ative Transcript (“AT”) 449-53.) Plaintiff alleged an onset date of July

4 1, 2002, claiming disability due in part to “IBS, diverticulitis, polyps, problems with leg[,] back

5 and sciatic nerve, numbness in legs, problems with feet[,] arthritis, pain in shoulders . . . .” (See

6 AT 143.) Plaintiff’s applications were denied, and a district court affirmed. (AT 69-80; 143-47;

7 587-638.) In September of 2013, th e Ninth Circuit remanded the case in light of newly

8 discovered evidence, finding that revelations from a 2010 surgery of plaintiff’s intestines and

9 abdomen could be probative of plaintiff’s health as it existed in 2002. (AT 88-89.) On August 7,

10 2014, a second ALJ ruled against plaintiff, finding no evidence existed to link the 2010

11 revelations to plaintiff’s health in 2002. (AT 101-15.) Plaintiff again filed suit in this court; in

12 February of 2016, Magistrate Judge Delaney again remanded, finding the second decision failed

13 to adequately address the issue raised by the Ninth Circuit because the ALJ merely substituted his

14 own opinion in place of medical evidence. (AT 116-21.) Back at the agency, plaintiff’s widow

15 appeared alongside counsel at a December 2019 hearing before a third ALJ, where she testified

16 about plaintiff’s conditions, and where a vocational expert testified about available jobs for those

17 with certain limitations. (AT 24-57.)

18 On March 3, 2021, the third ALJ issued a decision concluding plaintiff was not disabled

19 for the relevant period. (AT 1-23.) At step one, the ALJ found plaintiff had not engaged in

20 substantial gainful activity between July and December of 2002. (AT 8.) At step two, the ALJ

21 determined plaintiff had the following severe impairments: chronic bilateral inguinal pain of

22 uncertain cause, likely neuropathic; and irritable bowel syndrome with mixed features. (Id.) The

23 ALJ labeled “non-severe” plaintiff’s asserted impairments of hypertension and high blood

24 pressure, polyps, diverticulitis, diverticulosis, and any issues with his hands, knees, and feet. (AT

25 8-9.) The ALJ cited “the medical summary below” and found the diverticulitis, diverticulosis,

26 and polyps had been minimal, mild, and benign; the hypertension and high blood pressure had

27 been effectively controlled with medication and conservative treatment; and the asserted issues

28 with plaintiff’s hands, knees, and feet lacked supporting medical evidence. (AT 9.)

1 At step three, the ALJ found no listing equivalencies. (AT 9; citing 20 C.F.R. Part 404,

2 Subpart P, App’x 1.) The ALJ then found plaintiff had the residual functional capacity (“RFC”)

3 in 2002 to perform medi u m work as per Title 20 C.F.R. § 404.1567(c), except that he “could be

4 expected to be off task 5% of the time due to pain and fatigue” and should have no more than

5 frequent instances of “postural activity[,] use of ramps and stairs[,] work[ing] at exposed

6 heights[,] and fingering.” (AT 10.) In crafting this RFC, the ALJ stated he considered plaintiff’s

7 testimony, the medical evidence an d opinions, and other evidence. (Id.) This evidence included

8 plaintiff’s description of his symptoms from his numerous disability reports and hearing

9 testimony (AT 11-12), the testimony of plaintiff’s wife and other third parties (AT 13; 20-21), the

10 probative portions of the medical evidence (AT 14-19), and the medical opinions of two state-

11 agency physicians, plaintiff’s 2006 treating physician, and an impartial medical expert who

12 reviewed the record in 2020 (AT 19-20).

13 Relevant here is this 2020 opinion of Dr. Puestow, a doctor of endocrinology and internal

14 medicine, who responded to interrogatories propounded by the ALJ that were tailored to the issue

15 of the 2010 surgery. (AT 18, 20.) The key interrogatory at issue described plaintiff’s October

16 2010 surgery intended to “correct complications from a prior inguinal hernia surgery in 1995,” as

17 well as the Ninth Circuit’s 2013 memorandum noting how this surgery had revealed conditions

18 that could have affected plaintiff’s impairments as they existed in 2002. (AT 4-5.) Dr. Puestow

19 reviewed the evidence in the record and opined that there was “no objective evidence” of a

20 connection between plaintiff’s health in 2002 and the 2010 revelations, nor any evidence that

21 plaintiff’s symptoms were connected to the 2010 revelations. (AT 18, citing AT 855.) Dr.

22 Puestow opined that it was likely plaintiff’s intestinal and abdominal pain were unrelated, the

23 latter likely due “primarily to irritable bowel.” (AT 18, citing AT 858.)

24 Based on the RFC and the VE’s testimony, the ALJ determined that in 2002, plaintiff was

25 capable of performing past relevant work as an Operating Engineer (medium, skilled) as

26 generally performed in the national economy; thus, the ALJ found plaintiff was not disabled. (AT

27 22.) Plaintiff filed this action requesting judicial review of the Commissioner’s (third) final

28 decision; the parties filed cross-motions for summary judgment. (ECF Nos. 1, 28, 31.)

1 III. ISSUES PRESENTED

2 Plaintiff contends the Administrative Law Judge erred in: (A) resolving multiple non-

3 severe impairments at ste p two; (B) resolving the 2020 medical opinion of Dr. Puestow regarding

4 whether adhesions identified in the 2010 exploratory surgery were present in 2002; and

5 (C) resolving plaintiff’s subjective symptom testimony. Plaintiff requests a remand for further

6 proceedings. (ECF No. 28.)

7 The Commissioner disagree s, arguing the ALJ appropriately resolved: (A) plaintiff’s non-

8 severe conditions at step two; (B) the opinion of Dr. Puestow; and (C) plaintiff’s subjective

9 symptom testimony. Thus, the Commissioner contends the decision as a whole is supported by

10 substantial evidence and should result in affirmance. (ECF No. 31.)

11 IV. DISCUSSION

12 A. Step Two Determinations

13 Legal Standards at Step Two

14 At step two, the ALJ is to distinguish between those impairments that are “severe” and

15 “non-severe.” See 20 C.F.R. § 404.1520. A “severe” impairment is one that significantly limits

16 the physical or mental ability to perform basic work activities. Id. “An impairment or

17 combination of impairments may be found ‘not severe’ only if the evidence establishes a slight

18 abnormality that has no more than a minimal effect on an individual’s ability to work.” Webb v.

19 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).

20 When asserting a condition has more than a minimal effect, the plaintiff must provide

21 medical evidence beyond a mere diagnosis and cannot rely solely on symptom testimony. 20

22 C.F.R. 404.1529(a). However, the step two assessment is a “de minimus screening device to

23 dispose of groundless claims,” and the ALJ’s conclusion must be supported by the medical

24 evidence in the record. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Even when

25 evidence in the record is “susceptible to more than one rational interpretation,” the ALJ’s findings

26 are determinative when “supported by inferences reasonably drawn from the record.” Molina v.

27 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

28 ///

1 Analysis

2 Plaintiff contends that the ALJ’s step two findings “are so vague and unsupported by any

3 identified evidence that m eaningful review is not possible.” Plaintiff cites, by way of example,

4 the ALJ’s findings regarding diverticulitis, diverticulosis, and colonic polyps; it reads in full:

5 As discussed in the medical summary below, the claimant was

diagnosed with diverticulitis or diverticulosis as well as colonic

6 polyps during the period at issue. The diverticulitis or diverticulosis

was often noted to be minimal or mild. The polyps were benign. All

7 of those conditions w ere treatable with medications, changes in

diet, and/or surgery, and the claimant did have polypectomies.

8

9 (AT 9.) Plaintiff notes this passage fails to cite any medical evidence and fails to identify which

10 conditions were treatable with medication, changes in diet, or surgery. Plaintiff then appears to

11 lodge the “vague and unsupported” argument against each other of the ALJ’s findings at step two,

12 though only in a general sense.

13 If the court were to read the ALJ’s step two analysis in isolation, plaintiff’s argument

14 might have traction, as the text at step two regarding the non-severe conditions is indeed brief.

15 However, contrary to plaintiff’s contentions, the step two analysis on each of these conditions

16 does not just pronounce these things to be true. Instead, the ALJ starts each paragraph of the

17 analysis on the non-severe conditions by referencing “the medical summary below,” “the

18 objective medical evidence,” or “the record” before providing a rationale. (AT 9.) When

19 determining whether the ALJ’s conclusions are supported by substantial evidence, the court

20 reviews the record as a whole, Luther, 891 F.3d at 875, and cannot reverse just because a decision

21 fails to be clearly written. Molina, 674 F.3d at 1121 (“Even when an agency explains its decision

22 with less-than-ideal clarity, we must uphold it if the agency's path may reasonably be

23 discerned.”). Thus, the court considers the ALJ’s citation of the probative evidence throughout

24 the decision alongside the ALJ’s rationale at step two.

25 To reiterate, the ALJ found the following of plaintiff’s alleged conditions to be non-severe

26 during the relevant period: (1) diverticulitis, diverticulosis, colonic polyps; (2) hypertension and

27 high blood pressure; and (3) hands, knees, and feet conditions; and (4) severe liver impairment,

28 peripheral vascular disease, and pancreatic cancer.

1 1. Diverticulitis, Diverticulosis, Colonic Polyps

2 For plaintiff’s diverticulitis, diverticulosis, and colonic polyps, the decision devotes

3 significant space to discu s sing the evidence about these conditions in the section below the RFC

4 finding. The ALJ noted plaintiff’s 2005 testimony asserting he had issues due to IBS,

5 diverticulitis, and polyps, as well as plaintiff’s function reports where he stated he was unable to

6 do chores because of pain, worsening symptoms, and a need to stay near a toilet at all times. (AT

7 11, citing AT 136; 142; 505-06; 52 2; 524; 533-36; 541-44; 553-85.) However, the ALJ also

8 noted plaintiff stated his IBS was tolerable in 2002 (AT 12, citing AT 559), and he continued only

9 taking over-the-counter medications for pain up through 2007 (Id., citing AT 564).

10 Regarding the medical evidence, the ALJ discussed a significant amount of evidence in

11 the record, both from the pre- and post-insured period, including:

12 • Plaintiff’s treatment in 1997 for abdominal pain, diarrhea, chronic bowel

problems, diverticulosis coli, and status post right inguinal hernia repair

13 (AT 684-85; 769; 831-32);

• Dr. Sande’s recommendation of a high fiber diet with occasional use of

14

medication, which plaintiff reported doing well with minimal

15 diverticulosis found afterwards (AT 708; 683; 676; 702);

• The removal of a polyp with no complications in 1998 (AT 691-92; 727;

16 837-38);

• A 1999 CT scan revealing no significant abnormalities in the pelvis and

17 normal abdominal findings (AT 678; 703; 709; 711; 725);

18

• In 2000, Dr. Sande’s recording of plaintiff’s expressed inguinal pain, the

doctor’s diagnosis of possible scarring from previous inflammation, and

19 an opinion that plaintiff’s stated symptoms were “out of proportion to the

findings with extensive workup” (AT 679);

20 • Also in 2000, Dr. Sande’s trigger-point injection and recommendation that

plaintiff receive another (or oral medications) if his symptoms continued,

21

as well as that no follow up was sought by plaintiff until 2010 (Id.);

22 • In June 2002, Dr. Sande’s note of plaintiff’s same complaints with an

admission that his bowel habits were fairly regular (AT 677-78);

23 • Dr. Sande’s opinion that plaintiff’s inguinal pain was likely connected to

the 1995 surgery but this surgery did not explain the bilateral pain (Id.);

24

• Dr. Sande’s prescription of Nortriptyline and ALJ’s note that the record

25 was unclear whether plaintiff filled this prescription (Id.);

• In July 2002, the removal of a benign polyp during a colonoscopy (AT

26 689-90);

• An exam in 2005 noting abdominal pain, plaintiff’s reports of a history of

27 diverticulosis, polyps, IBS, a well-healed right inguinal hernia repair, and

a benign abdomen (AT 834); and

28

1 • A 2007 exam for abdominal pain revealing moderate diverticulosis (AT

794; 792; 814; 824-25; 834).

2

3 (AT 14-15; 17.) Additio n ally, regarding the bilateral inguinal hernia, the ALJ discussed

4 plaintiff’s October 2010 surgery that was intended to “correct complications from [the 1995]

5 surgery.” (AT 12, citing AT 619; 841-44.) Given that the Ninth Circuit instructed the ALJ to

6 examine whether revelations from this surgery affected plaintiff’s impairments as they existed in

7 2002 (as well as Magistrate Judge D elaney’s instructions on the second remand in 2016), the ALJ

8 chose to rely on the interrogatory answers and opinions of Dr. Puestow, provided in February of

9 2020. (AT 18.) Therein, Dr. Puestow opined there was “no objective evidence adhesions were

10 present in 2002,” nor any evidence plaintiff’s “symptoms were due to adhesions.” (Id., citing AT

11 855.) Dr. Puestow opined that it was “likely the inguinal pain and the abdominal pain were

12 unrelated,” the latter likely due “primarily to irritable bowel.” (Id., citing AT 858.)

13 This substantial, if not exhaustive, recounting of the probative evidence on plaintiff’s

14 diverticulitis, diverticulosis, and colonic polyps is more than enough for the court to discern the

15 source of the ALJ’s conclusions at step two. Molina, 674 F.3d at 1121 (“Even when an agency

16 explains its decision with less-than-ideal clarity, we must uphold it if the agency's path may

17 reasonably be discerned.”). No error is apparent in the non-severe findings here. Webb, 433 F.3d

18 at 686 (“An impairment . . . may be found ‘not severe’ only if the evidence establishes a slight

19 abnormality that has no more than a minimal effect on an individual’s ability to work.”).

20 2. Hypertension and High Blood Pressure

21 Regarding plaintiff’s hypertension and high blood pressure conditions, the ALJ similarly

22 cited a significant amount of evidence, including:

23 • The diagnoses from plaintiff’s health providers prescriptions (AT 208-27);

• Plaintiff’s wife’s refill request for blood pressure medication in 2000 and

24

plaintiff’s refill for his hypertension medication in 2002 (AT 763; 768);

25 • Records indicating the medications controlled these conditions, and that

plaintiff was often non-complaint with his prescriptions and had continued

26 smoking (elevating his blood pressure) (AT 208-27; 763-64; 768).

27 (AT 13; 15-16.) The ALJ’s conclusion at step two coupled with this evidentiary discussion

28 satisfies the ALJ’s substantial evidence burden. Webb, 433 F.3d at 686.

1 3. Hands, Knees, and Feet

2 Plaintiff contended in his application that he was disabled due to “problems with leg[,]

3 back and sciatic nerve, n u mbness in legs, problems with feet[, and] arthritis.” (See AT 143.) The

4 ALJ noted plaintiff’s reiteration of many of these contentions in his testimony and functional

5 reports. (AT 11-12, citing AT 136; 142; 505-06; 522-23 (plaintiff’s 2005 testimony averring

6 “problems with his leg and back, sciatic nerve, numbness in his legs, problems with his feet,

7 arthritis”); 524; 533-36; 541-44; 55 3-85 (plaintiff’s 2007 testimony, including at 563 where he

8 stated he had been using a cane to walk). The ALJ also noted Dr. Sande’s 1997 impression of

9 years-old knee and back surgeries, as well as a prescription for crutches, a cane, and a brace. (AT

10 14, citing AT 684-85; 831-32). The ALJ found that, despite plaintiff’s assertions, the medical

11 evidence and prior admissions led to the conclusion these impairments were not severe. In so

12 concluding, the ALJ cited the following evidence:

13 • Plaintiff’s testimony in some of these same reports that his back improved

up through 2001 (AT 559), that he did not receive treatment for any back

14 or knee issues in 2002 (AT 574), that he provided vague answers as to

how often he used braces or a cane (AT 522; 575 (stating he did not use a

15 cane “all that much” in 2002), and that he only took over-the-counter

medications for pain up through 2007 (AT 564);

16

• Regarding plaintiff’s ability to finger, the ALJ noted this evidence arose

17 well after the relevant period (AT 792; 814; 824-25.)

• The 2006 medical opinion of Dr. Wilcox, who stated plaintiff could not do

18 sedentary work because of his hand, back, knee and foot pain due to the

impairments. The ALJ assigned little weight to this opinion, finding it

19

related to plaintiff’s condition as it was in 2006, and noting the evidence

20 on these conditions from 2002 indicated plaintiff had been conservatively

treated and functioning much better in 2002 (AT 20);

21 • Dr. Puestow’s 2020 opinion that plaintiff could stand, walk, or sit for only

3-4 hours per day and only frequently perform postural activities. The

22 ALJ assigned partial weight to this opinion, finding the sit-walk-stand

opinion was inconsistent with the medical records from the relevant period

23

and finding plaintiff’s condition required a more restrictive RFC on other

24 of plaintiff’s conditions (AT 20, citing AT 859-64).

25 (AT 11-12; 17.) As with the other of the ALJ’s analysis, the undersigned finds the ALJ’s linking

26 of his conclusions at step two to be supported by the substantial evidence cited in the RFC

27 section. Ford, 950 F.3d at 1154; Molina, 674 F.3d at 1121.

28 ///

1 4. Remaining non-severe conditions

2 Regarding plaintiff’s liver impairment, peripheral vascular disease, and pancreatic cancer,

3 the undersigned notes th a t plaintiff does not appear to specifically challenge the ALJ’s decision

4 on these conditions. (See ECF No. 28 at 9-10 (proffering arguments concerning the ALJ’s

5 analysis of plaintiff’s asserted diverticulitis, diverticulosis, colonic polyps, hands, knees, and

6 feet).) Thus, the court does not believe any argument from plaintiff is before it.

7 However, assuming arguend o the opposite, the court finds the ALJ’s identification of and

8 conclusions on these conditions (AT 9) coupled with a review of the medical evidence (AT 16-

9 17) to be sufficient for the court to provide a review and affirm on these points. The ALJ noted

10 no evidence existed in the record indicating plaintiff had a severe liver impairment in 2002, or

11 that his vascular disease and pancreatic cancer arose during the relevant period. Thus, the ALJ

12 properly resolved these issues at step two. Molina, 674 F.3d at 1121.

13 B. Medical Opinion Evidence

14 Next, plaintiff contends the ALJ committed multiple errors when resolving the expert

15 medical opinion of Dr. Puestow. The doctor responded to the ALJ’s 2020 interrogatories

16 concerning the relationship between revelations made during the 2010 exploratory surgery and

17 plaintiff’s conditions as they existed in 2002. Plaintiff contends: (1) the interrogatories were

18 excessively leading; (2) Dr. Puestow failed to offer persuasive answers supported by citation to

19 the record; and (3) the ALJ failed to permit plaintiff the opportunity to cross examine Dr.

20 Puestow.

21 Legal Standards – Medical Opinions and Persuasiveness

22 For cases filed before March 2017, generally speaking, the ALJ is required to consider a

23 host of factors in deciding the weight given to any medical opinion. These include the examining

24 relationship, the length of the treatment relationship and frequency of examination, the nature and

25 extent of the treatment relationship, supportability, consistency with the record, specialization,

26 and any other factors deemed relevant. 20 C.F.R. § 404.1527(c)(1)-(6).

27 In order to evaluate whether an ALJ properly rejected a medical opinion, in addition to

28 considering its source, the court considers whether: (1) contradictory opinions are in /the record;

1 and (2) clinical findings support the opinions. Lester, 81 F.3d at 831. Rejection of most medical

2 opinions under this old framework operated under a “specific and legitimate” framework. Id. at

3 830. An ALJ could prov i de specific and legitimate reasons by “setting out a detailed and

4 thorough summary of the facts and conflicting clinical evidence, stating [an] interpretation

5 thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 2011).

6 Analysis

7 1. The ALJ’s interrogatori es were not “excessively leading.”

8 Plaintiff first contends the ALJ’s interrogatories to Dr. Puestow were excessively leading.

9 Plaintiff focuses on the interrogatory at the top of page 4 (“Question A”), which reads:

10 As noted above, the claimant’s alleged onset date is July 1, 2002,

and his date last insured is December 31, 2002. A person who

11 presumably is not a physician stated this: “In October 2010, [the

claimant] underwent exploratory laparoscopic surgery, which

12 revealed serious bilateral adhesions likely caused by diverticulosis,

a previous appendectomy, and scarring from a 1995 groin hernia.

13 The presence of serious intestinal adhesions in 2010 is probative of

the actual severity of [the claimant’s alleged] impairment in 2002 . .

14 . . [Therefore,] the ALJ should consider . . . whether [the claimant’s

alleged] impairment was 'severe'. . . prior to the expiration of his

15 disability coverage in 2002.”

Given the observation above, do YOU believe that the presence of

16 intestinal adhesions in 2010 would likely indicate the presence of

intestinal adhesions between July 1, 2002, and December 31, 2002?

17 Please explain your answer.

18 (AT 855.) Plaintiff offers a different version of an interrogatory he contends would be more

19 within the spirit of the regulations. See Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (noting the

20 ALJ's duty to investigate facts and develop arguments both for and against granting benefits).

21 Contrary to plaintiff’s argument, the court does not read this interrogatory (or any of the

22 others) as a violation of his duty to remain impartial, as the interrogatories and decision are not

23 read in isolation but in relation to the entire record. Luther, 891 F.3d at 875. While this

24 interrogatory is indeed directed at a very specific issue, it reasonably does so because this is the

25 very issue the Ninth Circuit remanded on (and the very issue Magistrate Judge Delaney reiterated

26 when ordering the Commissioner to solicit evidence—not just the ALJ’s opinion—on the matter).

27 Given that this case had been twice remanded, it was completely reasonable for the ALJ to quote

28 the Ninth Circuit directly, and equally reasonable to inform Dr. Puestow the statement was not

1 from a medical source. And, critically, the interrogatory does not confine Dr. Puestow to a

2 predetermined answer, as he could have opined the opposite on Question A. As the

3 Commissioner points ou t , the interrogatories begin by seeking to establish Dr. Puestow’s

4 impartiality, which the doctor did. (See AT 852.) Thus, this interrogatory did not turn the ALJ

5 into an adversary as plaintiff suggests, and the court finds no error in the ALJ’s fashioning of this

6 (or the other) interrogatories as he did. Ford, 950 F.3d at 1154 (noting the breadth of the

7 substantial evidence standard).

8 2. Substantial evidence supports the ALJ’s resolution of Dr. Puestow’s opinion.

9 Next, plaintiff contends Dr. Puestow’s failure to fully answer the interrogatories as

10 instructed should have led to a conclusion that the opinion is not persuasive. Plaintiff notes that

11 interrogatory 6 instructs Dr. Puestow to not only identify plaintiff’s impairments, but also to “cite

12 the objective medical findings that support [this] opinion, with specific references (exhibit or

13 page number) to the evidence we provided from the case record.” (AT 852.) Interrogatory 7

14 similarly instructs Dr. Puestow to explain why a listing would not be met, and (as noted above)

15 Question A instructs the doctor to explain his answer regarding the 2010-2002 connection. (AT

16 853-54.) Plaintiff raises similar concerns with Dr. Puestow’s “Medical Statement of Ability to do

17 Work-Related Activities,” which is a simple check-box form with no additional notes from the

18 doctor. (See AT 859-64.) With each of these responses, the doctor failed to fully answer the

19 question as requested, simply listing his conclusions and checking boxes.

20 Plaintiff is correct that the ALJ would have been within his rights to reject any portions of

21 Dr. Puestow’s opinion if the ALJ found it to be unsupported or contradicted by other opinions in

22 the record. Lester, 81 F.3d at 831; see also Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022)

23 (noting the ALJ reasonably rejected an unsupported and unexplained opinion that came in check-

24 box form). In fact, the ALJ did reject certain portions of the Medical Statement, reasoning that

25 with plaintiff’s ability to stand, walk, or sit over the course of a workday, the ALJ found the

26 doctor’s limitations inconsistent with the medical evidence and conservative treatment (up

27 through the date of the decision and “in the years beyond”). (AT 20.) The question is whether

28 the doctor’s failure to fully answer the interrogatories and complete the Medical Statement is a

1 shortcoming requiring the ALJ to reject all of the doctor’s opinion. The answer is no, so long as

2 the ALJ set forth his conclusions backed up by substantial evidence. Ford, 950 F.3d at 1154.

3 And with the portions of t he doctor’s opinion the ALJ found persuasive, he did just that.

4 Regarding the potential 2010-2002 abdominal connection, the ALJ noted other portions of

5 the record consistent with Dr. Puestow’s opinion that no connection likely existed. (AT 14-16;

6 18.) The ALJ also specifically noted the doctor’s answer to the catch-all question, which read:

7 It is likely the inguin al pain and the abdominal pain were unrelated.

It is most likely that the abdominal symptoms were primarily due to

8 irritable bowel, a motility disorder. This is the opinion of his

treating physicians as stated in the record.

9

10 (See AT 18; citing AT 858.) Regarding Dr. Puestow’s other opinions on plaintiff’s ability to

11 perform physical activities, the ALJ concurred on plaintiff’s ability to perform postural activities,

12 finger, and work in certain environments, finding those opinions consistent with the medical

13 evidence (Id.)

14 Given that the ALJ provided a roadmap of how he reached this conclusion by thoroughly

15 discussing the probative evidence in the record in the sections below the RFC statement, the court

16 finds the ALJ did not fail in his duty to properly evaluate Dr. Puestow’s opinion in light of the

17 record as a whole. Magallanes, 881 F.2d at 751 (noting the ALJ’s duty to “set[] out a detailed

18 and thorough summary of the facts and conflicting clinical evidence, stat[]e [an] interpretation

19 thereof, and mak[e] findings”); Luther, 891 F.3d at 875 (regarding the duty to read the record as a

20 whole).

21 3. The ALJ did not abuse his discretion in issuing the decision.

22 Finally, plaintiff contends the ALJ’s failure to allow cross-examination of Dr. Puestow

23 was an abuse of discretion. See 20 C.F.R. § 404.950(e) (noting the authority regarding cross

24 examination). After the ALJ received Dr. Puestow’s responses, he forwarded them to plaintiff on

25 February 20, 2020, and informed him he had the right to proffer questions to Dr. Puestow, request

26 a supplemental hearing, or request a subpoena. (AT 672-73.) Plaintiff responded on March 6th

27 by requesting a transcript hearing where the ALJ interviewed plaintiff’s wife and the VE. (AT

28 675.) The ALJ’s next act was to issue his decision.

1 While the court shares some of plaintiff’s concerns as to the ALJ’s choice to issue the

2 decision without sending the hearing transcript, the court ultimately finds this act to be within the

3 ALJ’s discretion. See Fo r d, 950 F.3d at 1154 (noting a denial of request for evidence is reviewed

4 for abuse of discretion). Plaintiff could have proffered questions to Dr. Puestow on the salient

5 matter—the connection between plaintiff’s 2010 surgery and his condition as it existed in 2002—

6 because it had been discussed at length in the previous decisions by the prior ALJs, by this court,

7 and by the Ninth Circuit. Simply, t here is little connection between this last hearing and Dr.

8 Puestow’s interrogatory answers, and so the ALJ did not abuse his discretion in treating plaintiff’s

9 March 6th letter as non-responsive. Ford, 950 F.3d at 1154; see also, e.g., Vanderpool v.

10 Celebrezze, 240 F. Supp. 801, 805 (D. Or. 1965) (finding plaintiff waived the right to cross

11 examine a witness in an administrative proceeding where the ALJ offered specific instructions to

12 plaintiff on how to proceed and plaintiff chose not to follow the ALJ’s instructions).

13 Conclusion

14 For these reasons, the court finds the ALJ properly resolved all issues surrounding Dr.

15 Puestow’s opinion as expressed in the interrogatory responses.2 Magallanes, 881 F.2d at 751.

16 C. Subjective Symptom Testimony

17 Legal Standards – Subjective Symptom Testimony

18 In evaluating the extent to which an ALJ must credit the claimant’s report of their

19 symptoms, the Ninth Circuit has stated:

20 First, the ALJ must determine whether the claimant has presented objective

medical evidence of an underlying impairment which could reasonably be

21 expected to produce the pain or other symptoms alleged. In this analysis, the

claimant is not required to show that her impairment could reasonably be

22 expected to cause the severity of the symptom she has alleged; she need only

show that it could reasonably have caused some degree of the symptom. Nor must

23 a claimant produce objective medical evidence of the pain or fatigue itself, or the

severity thereof.

24

25 2 Plaintiff also notes that the ALJ initially indicated he would send interrogatories to a

gastroenterologist, but chose instead Dr. Puestow, whose specialty is endocrinology. (ECF No.

26

28 at 11:3-7.) It is not clear whether plaintiff is actually challenging the choice of an

27 endocrinologist or if he is simply noting it in passing. Assuming arguendo the former, the court

finds no error, as Dr. Puestow is also a doctor of internal medicine (AT 850) and otherwise

28 appears qualified to opine on medical evidence in this context. Ford, 950 F.3d at 1154.

1 If the claimant satisfies the first step of this analysis, and there is no evidence of

malingering, the ALJ can reject the claimant's testimony about the severity of her

2 symptoms only by offering specific, clear and convincing reasons for doing so.

This is not an easy requirement to meet: The clear and convincing standard is the

3 most demanding r e quired in Social Security cases.

4 Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison, 759 F.3d at 1014-15).

5 The ALJ’s reasons for discounting or rejecting a claimant’s subjective symptom testimony

6 must be “sufficiently specific to allow a reviewing court to conclude the adjudicator . . . did not

7 arbitrarily discredit a claimant’s tes timony.” Brown-Hunter v. Colvin, 806 F.3d 487, 483 (9th

8 Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)). Examples of

9 “specific, clear and convincing reasons” for discounting or rejecting a claimant’s subjective

10 symptom testimony include: the effectiveness of or noncompliance with a prescribed regime of

11 medical treatment, prescription of conservative treatment, inconsistencies between a claimant’s

12 testimony and conduct (including daily activities), and inconsistencies between the alleged

13 symptoms and the medical evidence of record. See Tommasetti, 533 F.3d at 1040; Lingenfelter

14 v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). A lack of corroborating, objective medical

15 evidence alone is insufficient grounds for an ALJ to discount a claimant’s subjective symptoms;

16 however, it is a factor the ALJ may consider. See Rollins, 261 F.3d at 857 (citing 20 C.F.R

17 § 404.1529(c)(2)). A claimant’s statements of subjective symptoms alone are insufficient

18 grounds to establish disability, because if an ALJ was required to believe every allegation of pain

19 or impairment, disability benefits would run afoul of the Social Security Act and its purpose. See

20 20 C.F.R § 404.1529(a); Treichler, 775 F.3d at 1106.

21 Analysis

22 Plaintiff contends the ALJ erred in resolving his symptom testimony, asserting “there is

23 still not a legitimate answer to the question identified by the Ninth Circuit as integral to a proper

24 credibility evaluation.” (ECF No. 28 at 16.) Plaintiff argues that in rejecting his symptom

25 testimony, the ALJ only cited to the medical evidence and Dr. Sande’s statement that plaintiff’s

26 symptoms were “out of proportion to the [objective medical] findings”; plaintiff notes that under

27 the Ninth Circuit’s standards, this is not enough.

28 ///

1 Plaintiff is correct that a lack of corroborating, objective medical evidence alone is

2 insufficient grounds for an ALJ to discount a claimant’s subjective symptoms. See Rollins, 261

3 F.3d at 857. However, it is a factor the ALJ may consider alongside other reasons, such as where

4 a plaintiff’s symptoms can be conservatively treated, including with over-the-counter

5 medications, where plaintiff’s daily activities do not align with the symptom testimony, or where

6 the plaintiff has otherwise offered inconsistent testimony. Tommasetti, 533 F.3d at 1039-40

7 (reasoning that a favorable respons e to conservative treatment undermines complaints of

8 disabling symptoms); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“We have previously

9 indicated that evidence of conservative treatment is sufficient to discount a claimant’s testimony

10 regarding severity of an impairment.”); Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006)

11 (finding a condition that can be controlled or corrected by medication is not disabling for

12 purposes of determining eligibility for benefits under the Act); Morgan v. Comm’r, 169 F.3d 595,

13 600 (9th Cir. 1999) (ALJ’s determination regarding claimant’s ability to “fix meals, do laundry,

14 work in the yard, and occasionally care for his friend’s child” was a specific finding sufficient to

15 discredit the claimant’s credibility); Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989)

16 (explaining that the ALJ may employ ordinary techniques of credibility evaluation and may take

17 into account prior inconsistent statements or a lack of candor by the witness). This analysis is

18 what the ALJ did here. (See AT 14 (noting plaintiff’s inconsistent statements, inconsistent daily

19 activities, and conservative treatment that included changes to his diet and use of over-the-counter

20 pain medication). Thus, the court finds no error in the ALJ’s resolution of plaintiff’s symptom

21 testimony.

22 V. CONCLUSION AND RECOMMENDATIONS

23 Beyond plaintiff’s challenges, the court finds the ALJ’s decision otherwise supported by

24 substantial evidence in the record and free from legal error. Ford, 950 F.3d at 1148 (noting that a

25 district court may reverse only if the ALJ’s decision “contains legal error or is not supported by

26 substantial evidence.”) Accordingly, IT IS HEREBY RECOMMENDED that:

27 1. Plaintiff’s motion for summary judgment (ECF No. 28) be DENIED;

28 2. The Commissioner’s cross-motion (ECF No. 31) be GRANTED;

1 3. The final decision of the Commissioner be AFFIRMED; and

2 4. The Clerk of Court be directed to CLOSE this case.

3 || These findings and recommendations are submitted to the United States District Judge assigned to

4 | the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I). Within fourteen (14) days after

5 || being served with these findings and recommendations, any party may file written objections with

6 || the court and serve a copy on all parties. Such a document should be captioned “Objections to

7 || Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served

8 | on all parties and filed with the court within fourteen (14) days after service of the objections.

9 || The parties are advised that failure to file objections within the specified time may waive the right

10 || to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998);

11 | Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

12 || Dated: July 31, 2023

i Aectl Aharon

14 KENDALL J.NE

UNITED STATES MAGISTRATE JUDGE

15

eilr. 832

16

17

18

19

20

21

22

23

24

25

26

27

28

17