Absyed v. Colvin

Filing 30

ORDER granting the plaintiff's motion for summary judgment 23 , denying the defendant's cross-motion for summary judgment 26 , and remanding the case for further proceedings. (lblc1S, COURT STAFF) (Filed on 3/31/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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MUNIS GHANNI ABSYED,

Case No. 15-cv-02328-LB

Plaintiff,

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v.

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NANCY A. BERRYHILL,
Defendant.

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ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
ECF Nos. 23 & 26

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INTRODUCTION

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Plaintiff Munis Ghanni Absyed moves for summary judgment, seeking judicial review of the

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Social Security Administration’s final decision denying him disability benefits.1 The

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Administrative Law Judge (“ALJ”) found that Mr. Absyed had the following severe impairments:

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multi-level DDD (including advanced canal stenosis C3-T1); cirrhosis; hepatitis C; and a history

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of thrombocytopenia (with no history of transfusions), but held that he was not disabled and did

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not qualify for Social Security Disability Insurance (“SSDI”) benefits. 2 The Commissioner

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opposes Mr. Absyed’s motion for summary judgment and cross-moves for summary judgment.3

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Motion for Summary – ECF No. 23. Record citations refer to the Electronic Case File (“ECF”);
pinpoint citations are to the ECF-generated page numbers at the top of documents.
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AR 23–31. Administrative Record (“AR”) citations refer to the page numbers in the bottom right
hand corner of the Administrative Record.
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Cross-Motion for Summary Judgment ‒ ECF No. 26.

ORDER — No. 15-cv-02328-LB

Under Civil Local Rule 16-5, the matter is deemed submitted for decision by this court without

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oral argument. All parties have consented to magistrate jurisdiction.4 The court grants Mr.

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Absyed’s motion and denies the Commissioner’s cross-motion on the grounds that the ALJ erred

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by (1) failing to properly weigh the opinion of Mr. Absyed’s treating physician Dr. Man, and (2)

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improperly discrediting Mr. Absyed’s testimony. The court remands for further proceedings.

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STATEMENT

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1. Procedural History
Mr. Absyed filed a Title II application for disability insurance benefits and a Title XVI

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application for supplemental security income, alleging disability beginning on March 18, 2011. 5

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United States District Court
Northern District of California

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The Social Security Administration (“SSA”) denied his claim on the ground that Mr. Absyed’s

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impairments were not severe enough to keep him from working.6

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Mr. Absyed timely appealed the SSA’s decision and filed a request for reconsideration.7 The

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SSA denied the reconsideration request.8 Mr. Absyed timely appealed the SSA’s reconsideration

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decision and requested a hearing before the ALJ.9 The ALJ held the hearing on May 22, 2014, in

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San Jose, California.10 Mr. Absyed and ALJ Christopher R. Inama attended the hearing; Mr.

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Absyed’s attorney Jeffrey Milam and vocation expert (“VE”) Linda Ferra appeared by

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telephone.11 The ALJ addressed the issues of whether Mr. Absyed met the SSA’s definition of

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“disabled” and also whether Mr. Absyed was disabled within the applicable disability period of

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Consent Forms ‒ ECF Nos. 8, 10.

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AR 169, 176.

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AR 21, 137.

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AR 143.

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AR 21, 145.

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AR 21, 152.

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AR 21.

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AR 65.

ORDER — No. 15-cv-02328-LB

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March 18, 2011, to June 13, 2014 (the date of the ALJ decision).12 The ALJ found that Mr.

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Absyed was not disabled.13
Mr. Absyed requested review of the ALJ’s decision by the Appeals Council.14 The Council

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denied his request for review.15 Mr. Absyed sought judicial review16 and moved for summary

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judgment.17 The SSA responded and cross-moved for summary judgment.18

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2. Summary of Record and Administrative Findings
2.1 Medical Records

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The court details below Mr. Absyed’s major medical treatments over the relevant disability

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period, including treatments for: (1) abdominal pain; (2) hepatitis C; (3) neck, arm, and wrist pain;

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United States District Court
Northern District of California

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(4) hemorrhoids; and (5) mouth, sinus, eye, and skin conditions. The court then describes primary-

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care physician Dr. Alan Man’s treatment notes, which span a substantial part of Mr. Absyed’s

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various treatments, and Dr. Man’s opinions that are at issue on appeal.

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2.1.1 Mr. Absyed Receives Abdominal-Pain Treatment

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On March 18, 2011, Mr. Absyed went to the Santa Clara Valley Medical Center Emergency

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Department complaining of nausea, vomiting, and abdominal pain.19 Doctors Avi Patil and David

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Johnson diagnosed Mr. Absyed with gallstone pancreatitis, for which he received surgery.20

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Following surgery, Mr. Absyed again visited the emergency department complaining of

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constant abdominal pain and nausea since surgery.21 After performing an ultrasound of Mr.

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AR 21.

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AR 21, 31.

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AR 16‒17.

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AR 1‒2.

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Complaint ‒ ECF No. 1; Motion to Proceed In Forma Pauperis ‒ ECF No. 2

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Motion for Summary Judgment ‒ ECF No. 23.

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Motion for Extension of Time ‒ ECF No. 25; Cross-Motion for Summary Judgment ‒ ECF No. 26.

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AR 248.

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AR 251, 255.

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ORDER — No. 15-cv-02328-LB

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Absyed’s abdomen, PA Susan Bertelsen found no indication of biloma, seroma, or intrahepatic

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biliary dilation, but she prescribed Vicodin for the pain.22 She told Mr. Absyed to see his primary-

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care physician as soon as possible.23
In July 2011, Mr. Absyed saw Dr. Rekha Bhaskar, his former primary-care physician, about

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his abdominal pain post-gallbladder surgery; he described the pain as being 10/10 most of the

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time.24 Mr. Absyed reported that Vicodin was not helpful.25 Dr. Bhaskar noted no weight loss or

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constipation.26 Mr. Absyed requested that his disability, which he had been on since May 2011, be

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extended because the abdominal pain rendered him unable to sit or walk.27 Dr. Bhaskar extended

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his disability for another month and advised that Mr. Absyed could return to full-duty work with

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no restrictions on August 8, 2011.28

United States District Court
Northern District of California

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In August 2011, Mr. Absyed saw Dr. Bhaskar to “follow up on extension of his disability.”29

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Mr. Absyed complained about abdominal pain, which he described as a 6/10, and claimed that he

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was unable to focus on anything but the pain and was therefore depressed.30 Dr. Bhaskar noted

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that Mr. Absyed looked very comfortable talking but that he continued to have nausea.31 Mr.

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Absyed was not vomiting and he was not experiencing weight loss or a change in appetite.32 Dr.

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Bhaskar extended Mr. Absyed’s disability for another month while she waited to review his CT-

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scan results and his hepatitis C treatment records.33

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AR 256.

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AR 258‒59.

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AR 260.

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AR 267.

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Id.

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AR 268.

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Id.

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AR 268‒70.

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29

AR 283.

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Id.

31

Id.

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32

Id.

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33

AR 285.

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ORDER — No. 15-cv-02328-LB

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After a brief lapse in insurance coverage, Mr. Absyed returned to see Dr. Bhaskar, who

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evaluated him for the ongoing abdominal pain, hepatitis C, thrombocytopenia, chronic epistaxis,

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and mild nodularity cirrhosis.34 Mr. Absyed previously received two shots for hepatitis B, but he

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had not started hepatitis C treatment and did not get an advised nasal-mass CT scan.35 Dr. Bhaskar

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noted Mr. Absyed was still on disability for the post-surgery abdominal pain and nausea.36
In September 2011, Mr. Absyed complained of acid-reflux symptoms, heartburn, a burning

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sensation in the stomach area, bloating, and vomiting.37 He also stated that he had intermittent

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abdominal pain and that he was taking Benadryl as needed to help him sleep at night.38
During a follow-up appointment with Dr. Bhaskar in October, Mr. Absyed continued to

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complain of abdominal pain, intermittent nausea, and diarrhea.39 He tested positive for H pylori,

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Northern District of California

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for which he completed treatment.40 Dr. Bhaskar noted that while he was still on disability, Mr.

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Absyed said he would talk to his manager about more restricted work because his security-guard

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job required a lot of walking, and his abdominal discomfort increased when he is “very active.”41
In late October 2011, Mr. Absyed sought a second opinion from Dr. Albert Lau for his

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ongoing, post-surgery abdominal pain.42 Dr. Lau noted that the abdominal pain, relieved with pain

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medicine, was “likely multifactorial with recent duodenal ulcer and cirrhosis.”43 Dr. Lau believed

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that Mr. Absyed’s hepatitis C might be contributing to his abdominal pain, but that an abdominal

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exam “is difficult because of body habitus.”44

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34

AR 294‒95.

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35

Id.

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36

AR 294.

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AR 308.

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Id.

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AR 327.

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AR 327, 334.

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AR 327.

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AR 334.

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43

AR 335.

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44

Id.

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ORDER — No. 15-cv-02328-LB

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In January 2012, Mr. Absyed advised Dr. Bhaskar that he continued to have abdominal pain.45

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Despite an ultrasound showing fatty liver and some changes consistent with cirrhosis, Dr. Bhaskar

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stated that it could not explain Mr. Absyed’s abdominal pain.46 Mr. Absyed further reported that

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the H pylori treatment improved his acid reflux, yet he still had some nausea acid regurgitation

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(mostly at night) for which he was no longer taking medicine.47 Dr. Bhaskar noted that Mr.

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Absyed was planning to return to his eight-hour shift in the security control room to see if he

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could still perform his job without any pain.48

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2.1.2 Mr. Absyed Receives Hepatitis C Treatment

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Mr. Absyed began treatment for hepatitis C with Dr. Krisna Chai on May 23, 2012.49 As

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United States District Court
Northern District of California

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reported by R.N. Elizabeth Best, Mr. Absyed needed around 24‒28 weeks of therapy.50
While receiving hepatitis C treatment in January 2013, Mr. Absyed reported to R.N. Best and

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Dr. Ready (Dr. Chai was on vacation) that he was bothered by things that did not usually bother

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him.51 He said he was depressed, but “able to pull” himself out of it, and did not feel hopeful about

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the future.52 Mr. Absyed reported spine problems, decreased appetite and thought processes,

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restless sleep, and an itching and burning sensation “around his ‘body.’”53 R.N. Best noted that

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Mr. Absyed did not use lotion on a regular basis, which he said helped the itching and burning.54

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In March 2013, Mr. Absyed reported being depressed, tearful, and bothered by things that did

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not usually bother him.55 He reported insomnia, a decreased appetite, “difficulty keeping his mind

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45

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Id.

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Id.

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Id.
AR 512.

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Id.

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AR 626.

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Id.

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AR 416.

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49

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Id.

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Id.

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AR 694.

ORDER — No. 15-cv-02328-LB

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on what he is doing, feel[ing] like everything he does is an effort,” and feeling lonely, sad, and as

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though people do not like him.56 R.N. Best noted that Mr. Absyed (who was still under Dr. Chai’s

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care) had a “negative personality and a flat affect.”57 Mr. Absyed reported that his digestive

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system was “very bad” — he experienced “abdominal pain 1/2 to 1 hour after eating spicy food.”58

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During his April 2013 appointment for hepatitis C, Mr. Absyed asked R.N. Joni Ishikawa if

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“Dr. Chai would consider permanent disability for him.”59 During this visit, Mr. Absyed reported

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experiencing flu-like symptoms and “not good” energy levels, but said he had an “okay” appetite

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and denied experiencing nausea, vomiting, or diarrhea.60
In May 2013, Mr. Absyed told pharmacist Jeannette Sanchez that while he did not feel suicidal

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or want to hurt others, he was fighting with his wife and son daily since he started hepatitis C

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Northern District of California

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treatment.61 He also reported being more irritable and getting angry at “small things.”62 Pharm.D.

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Sanchez gave Mr. Absyed a psychiatrist’s contact information.63 Blood tests also showed a

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vitamin D deficiency, for which Dr. Chai prescribed two supplements.64
Mr. Absyed finished his hepatitis C treatment in June 2013.65 He reported that he had no desire

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and was unable to do things, and that he had a poor appetite.66 Pharm.D. Sanchez subsequently

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reported that tests showed his hepatitis C viral load was no longer detectable.67 Despite continued

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complaints of chronic liver pain, a scan revealed that Mr. Absyed’s liver appeared normal with no

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56

Id.

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Id.

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58

Id.

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AR 709.

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Id.

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AR 723.

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62

Id.

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63

Id.

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AR 735.

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AR 746.

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66

Id.

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AR 757.

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ORDER — No. 15-cv-02328-LB

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significant abnormalities.68 Dr. Chai said that the liver plain was “unexplained,” but that it may be

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due to nerve irritation.69 Dr. Chai also explained that while Mr. Absyed’s cirrhosis is not

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reversible, the hepatitis C treatment was “to try to prevent any further damage to the liver.”70

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Nevertheless, Dr. Chai stated that cirrhosis does not typically cause liver pain.71

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2.1.3 Mr. Absyed Receives Treatment for Neck, Arm, & Wrist Pain

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In March 2012, Mr. Absyed saw Dr. Pradipta Ghosh about pain in his right wrist.72 Mr.

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Absyed claimed that Vicodin did not provide any pain relief and the pain prevented him from

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sleeping.73 Dr. Ghosh diagnosed the wrist pain as “tendonitis, dequervains” (or, dequervains
tenosynovitis) and recommended “rest, immobility with a wrist brace, [and] capsaicin cream.”74

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Northern District of California

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Dr. Ghosh reviewed with Mr. Absyed the risks of a tendon steroid injection.75 Mr. Absyed had the

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steroid injection the following week, but 10 days later reported to Dr. Man (his primary-care

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physician at the time, see Section 2.1.5 below) that he was still experiencing wrist pain.76
Mr. Absyed also saw Dr. Howard Lin about his right wrist pain.77 Dr. Lin confirmed Dr.

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Ghosh’s dequervains tenosynovitis diagnosis, recommended ice, and referred Mr. Absyed to hand

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therapy for splinting and a rehabilitation program.78 Mr. Absyed declined reinjection at the time

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because he was “scheduled to see [Dr. Chai] [the] next week for chronic hep[atitis] C.”79

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68

AR 771‒72.

69

AR 788.

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70

Id.

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71

Id.

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AR 436.

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Id.

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74

AR 438.

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75

Id.

76

AR 445, 462.

77

AR 485.

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78

AR 486.

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79

Id.

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ORDER — No. 15-cv-02328-LB

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In January 2013, Mr. Absyed visited Dr. John Pan for his right extremity and back pain.80 Mr.

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Absyed felt unable to use his right upper extremity to lift things and had some non-severe low

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back pain.81 He reported numbness and weakness.82 Standing, lying, walking, and lifting made his

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pain worse, but sitting made it better.83 Although he previously took Ibuprofen and Tylenol for the

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pain, he was instructed to stop due to his hepatitis C treatment.84
Dr. Pan’s examination showed that Mr. Absyed’s upper right extremity was diffusely weaker

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(4/5), including decreased strength in his shoulder abduction (4/5) and elbow flexion and

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extension (4/5), and that there was diffusely diminished light touch throughout the right side of

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Mr. Absyed’s body.85 Dr. Pan noted 5/5 strength in wrist extension, finger flexion, and hand
intrinsics.86 An MRI showed “severe spinal canal stenosis worst at C4-5[,] C5-6[,] [and] C6-7.”87

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United States District Court
Northern District of California

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Dr. Pan attributed Mr. Absyed’s symptoms to the spinal canal stenosis and “cervical

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radiculopathy, multilevel on the right.”88 But, given Mr. Absyed’s history of medical issues, the

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mild level of pain, and the lack of significant radicular pain, Dr. Pan recommended continuation of

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conservative care and referred him for physical therapy.89 Mr. Absyed later reported to Dr. Man

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that physical therapy was not helpful with his right hand pain.90

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In April 2013, on referral from Dr. Pan, Mr. Absyed met with Dr. Steven Spisak about his

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right hand, neck, and back pain.91 Mr. Absyed reported that since his visit with Dr. Pan, he noticed

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80

AR 632–33.

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AR 633.

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82

Id.

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83

Id.

84

Id.

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AR 636.

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86

Id.

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87

Id.

88

Id.

89

Id.

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90

AR 676.

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91

AR 809–10.

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ORDER — No. 15-cv-02328-LB

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clumsiness in his hands and decreased coordination in his upper and lower extremities.92 His

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symptoms were worse with prolonged walking and standing and improved with sitting, although

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all activities were affected to some degree.93 Mr. Absyed denied any walking limitations.94

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During Mr. Absyed’s physical examination, Dr. Spisak noted that although there was no

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strong evidence of cervical myelopathy, Mr. Absyed’s fine motor coordination in his hands was

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slightly slowed and uncoordinated.95 He observed that Mr. Absyed was able to transition from a

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seated position to standing “without any obvious difficulty,” but walked with an occasional broad-

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based gait with some very mild ataxia intermittently.96 Dr. Spisak noticed occasional loss of

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balance.97 Mr. Absyed was able to walk “on heels and toes with a broad stance.”98
Dr. Spisak diagnosed Mr. Absyed with cervical degenerative disc disease and cervical spinal

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United States District Court
Northern District of California

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stenosis, “most severe” at the C3-4 and 4-5 intervals and “extending all the way down to the

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cervicothoracic junction.”99 He suggested decompression as a treatment option, but recommended

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that Mr. Absyed complete his hepatitis C treatment before turning to surgery because he was at a

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much higher risk for epidural hematoma.100

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2.1.4 Mr. Absyed Receives Mouth, Sinus, Eye, Hemorrhoids, & Skin Treatment

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Over the course of the relevant period, Mr. Absyed received treatment for eye pain, mouth

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lesions, hemorrhoids, and sinus problems.
First, in 2011, Mr. Absyed had surgery on his lip and sinus. In July, Dr. Bhaskar referred Mr.

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Absyed for maxillary surgery to remove a “firm musocal lesion” in his upper right lip that bled

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92

AR 809.

93

AR 810.

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Id.

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95

AR 811.

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96

AR 810.

97

Id.

98

Id.

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99

AR 811.

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100

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Id.

ORDER — No. 15-cv-02328-LB

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when irritated.101 Dr. Nikhil Desai performed the procedure and removed the lesion.102 Then, in

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September, Mr. Absyed visited Dr. Sachin Parikh for sinus problems and a nasal obstruction.103 A

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CT-scan of Mr. Absyed’s sinus revealed right maxillary sinusitis, and Dr. Parikh recommended

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sinus surgery.104 Mr. Absyed asked for a second opinion from Dr. Ali Rezaee, who confirmed Dr.

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Parikh’s diagnosis and recommendation.105 Dr. Michael Friduss performed Mr. Absyed’s

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functional endoscopic sinus surgery in December and successfully flushed out the right maxillary

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sinus.106 In January 2012, Mr. Absyed told Dr. Bhaskar that his sinus problems were better.107

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Second, Mr. Absyed received treatment for eye pain in 2011 and 2012. Mr. Absyed saw Dr.

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David Scott in August 2011 for constant eye pain, for which he took pain medication every day
and Vicodin “when [the] pain is intolerable.”108 Dr. Scott noted that Mr. Absyed’s “only interest”

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Northern District of California

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that day was to get a Vicodin prescription.109 An eye exam revealed no physical findings

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confirming his eye pain.110 Dr. Scott prescribed pain medicine and recommended artificial tears

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and cold compresses.111 In April 2012, Mr. Absyed again complained of eye irritation, especially

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when reading.112 Dr. Eva Kim diagnosed Mr. Absyed with mild dry eyes, for which she

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recommended omega-3 supplements, and nightly warm compresses and lid scrubs.113
Third, Mr. Absyed met with Dr. Chai in March 2012 on a referral from Dr. Man (Mr.

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Absyed’s primary-care physician, see Section 2.1.5) for “intermittent rectal bleed[] attributed to

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101

AR 268‒69.

102

AR 268‒69, 274.

103

AR 302.

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104

AR 303.

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105

AR 314.

106

AR 361.

107

AR 416.

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108

AR 287.

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109

Id.

110

AR 289.

111

Id.

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112

AR 480.

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113

AR 483.

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ORDER — No. 15-cv-02328-LB

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hemorrhoids.”114 Dr. Chai performed a colonoscopy, removed polyps, and noted sigmoid

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diverticulosis and “[m]oderate internal hemorrhoids.”115 Dr. Chai recommended a high-fiber diet

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and a follow-up with pathology.116

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Fourth, Mr. Absyed met with Dr. Eileen Yadav in January 2013 for skin lesions.117 During this

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visit, Dr. Yadav performed a biopsy of a growth on Mr. Absyed’s left leg.118 The biopsy indicated

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a benign verrucous keratosis and no evidence of malignancy.119

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2.1.5 Dr. Man treats Mr. Absyed and Writes Two Opinions

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In March 2012, Mr. Absyed started seeing Dr. Alan Man as his primary-care physician. Dr.

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Man treated Mr. Absyed for many of the conditions above, often referring him to the doctors

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United States District Court
Northern District of California

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previously mentioned, and filled out two questionnaires that are at issue on appeal.
In March 2012, before he started his hepatitis C treatment, Mr. Absyed saw Dr. Man for his

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ongoing abdominal pain, right wrist pain, and chronic internal hemorrhoids.120 Dr. Man reported

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that Mr. Absyed felt his chronic abdominal pain and illness affected his concentration so that he

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was unable to do his job as a security guard.121
Mr. Absyed continued to complain about the wrist pain and arm weakness in January 2013,

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stating that he had trouble opening the car door.122 During this visit, Mr. Absyed also complained

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of fatigue and depression resulting from his hepatitis C treatment.123 Dr. Man noted that Mr.

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21

114

AR 448–49.

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115

AR 449, 451.

116

Id.

117

AR 612‒13.

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118

Id.

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119

AR 614.

120

AR 430.

121

Id.

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122

AR 599‒600.

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123

AR 600.

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ORDER — No. 15-cv-02328-LB

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Absyed did not want to take anything else for the depression and further thought Mr. Absyed

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would need to see a dermatologist for a skin lesion.124
During a follow-up appointment after completing his hepatitis C treatment, Mr. Absyed said

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he felt “a little better,” but was still fatigued after hepatitis C treatment and continued to

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experience chronic abdominal pain.125 He felt that he could do only 10‒15 minutes of moderate

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activity before having to rest.126 Dr. Man noted that Mr. Absyed did not have progressive

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symptoms and did not complain about the weakness or numbness in his right hand that he reported

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previously.127 He stated that there was no “clear activity limitation.”128 Mr. Absyed requested an

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extension of his disability because of his fatigue and abdominal pain, and Dr. Man granted an
additional 3 months.129 Mr. Absyed expressed his desire for permanent disability.130 And, “[d]ue

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United States District Court
Northern District of California

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to his continuing fatigue after hep[atitis] C treatment, [and] chronic abdominal wall pain,” Dr.

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Man believed Mr. Absyed was “disable[d] for the time being, perhaps long term.”131
During a follow-up appointment three months later, Mr. Absyed felt he was still disabled due

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to: (1) constant right upper quadrant pain; (2) decreased appetite; (3) persisting cough; (4) upper

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back pain; (5) increasing memory loss; (6) difficulty sleeping; (7) body aches; (8) increased

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difficulty getting out of a chair; (9) right arm weakness; and (10) erectile dysfunction.132 Dr. Man

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noted that Mr. Absyed had gained weight despite his claimed decrease in appetite.133 Dr. Man

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prescribed Zolpidem (a sleep aid) and noted that Mr. Absyed declined surgery “for now” for his

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124

AR 600–01.

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125

AR 775.

126

Id.

127

AR 777.

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128

Id.

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129

AR 775, 777.

130

Id.

131

AR 777.

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132

AR 793.

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133

Id.

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ORDER — No. 15-cv-02328-LB

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spinal stenosis.134 Dr. Man extended Mr. Absyed’s work disability for another two months, until

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January 2014.135

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Dr. Man completed two questionnaires, in January 2014 and in May 2014, supporting Mr.

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Absyed’s claim for disability.136 In Dr. Man’s January 2014 opinion, he stated that Mr. Absyed’s

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medical problems, which include (1) severe depression; (2) cirrhosis of the liver; and (3) spinal

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stenosis, preclude him from performing any full-time work at any exertion level, including the

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sedentary level.137 He opined that at one time, without rest or support, Mr. Absyed could sit

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indefinitely, but only stand and/or walk for 5–10 minutes.138 However, over an 8-hour period (i.e.

9

a work day), Mr. Absyed could sit for 4 hours and stand and/or walk for 2 hours.139 Dr. Man
indicated that Mr. Absyed did not need to lie down or elevate his legs, and he did not identify any

11
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Northern District of California

10

additional work limitations.140 He stated that Mr. Absyed had been disabled since March 2011.141

12

In Dr. Man’s May 2014 opinion, he stated that Mr. Absyed’s medical problems, which include

13

(1) depression; (2) hand pain; and (3) abdominal pain, preclude him from performing any full-time

14

work at any exertion level, including the sedentary level.142 Mr. Absyed could sit, stand, and walk

15

for “several hours” without support.143 Dr. Man indicated that Mr. Absyed does not need to lie

16

down or elevate his legs, but noted an additional hand-related work limitation.144 He stated that

17

Mr. Absyed had been disabled since June 2013.145

18
19
134

AR 796.

135

Id.

21

136

AR 830, 939.

22

137

AR 830.

138

Id.

139

Id.

24

140

Id.

25

141

Id.

142

AR 939.

143

Id.

27

144

Id.

28

145

Id.

20

23

26

ORDER — No. 15-cv-02328-LB

14

2.1.6 Agency Physicians G. Williams and Sadda Reddy

1

In August 2012, G. Williams M.D. reviewed and summarized Mr. Absyed’s medical

2
3

records.146 He determined that Mr. Absyed’s conditions results in some limitations but did not

4

prevent his prior work as a security officer.147 On reconsidering the denial of Mr. Absyed’s request

5

for benefits, Dr. Sadda Reddy reviewed and summarized Mr. Absyed’s medical records148 and

6

affirmed Dr. Williams’s opinion, noting that, “[c]onsidering fatigue due to hepatitis C and related

7

treatment,” Mr. Absyed’s “prior RFC determination of light is appropriate.”149

8
2.2 Mr. Absyed’s Testimony

9

Mr. Absyed testified before the ALJ on May 22, 2014.150 The ALJ asked Mr. Absyed about his

10

United States District Court
Northern District of California

11

work history.151 In 2003, Mr. Absyed worked at a 99 Cents store as an assistant manager, which

12

included opening and closing the store, stocking shelves, working the cash register, and various

13

bookkeeping tasks.152 Except for that year, Mr. Absyed’s other work was as a security officer.153

14

Mr. Absyed’s attorney, Jeffrey Milam, then questioned his client.154 Mr. Milam asked Mr.

15

Absyed whether his position at the 99 Cents store in 2003 was a full-time job.155 Mr. Absyed

16

responded that it was a full-time job, where he worked ten-hour days.156 When asked the duration

17

of this job, Mr. Absyed answered that he was employed at the 99 Cents store for “20 months,” or

18

from December 2001 to 2003.157

19
146

AR 85–95.

147

AR 95.

21

148

AR 110–32.

22

149

AR 113, 114, 118, 125, 126, 130.

150

AR 63, 68.

151

AR 68.

24

152

AR 69.

25

153

AR 70.

154

Id.

155

Id.

27

156

Id.

28

157

Id.

20

23

26

ORDER — No. 15-cv-02328-LB

15

Mr. Milam then asked about Mr. Absyed’s education.158 Mr. Absyed stated that he received a

1
2

Bachelor of Commerce degree in Pakistan.159 When asked about his reading and writing

3

proficiency in English, Mr. Absyed said that he was having difficulty comprehending the language

4

after experiencing liver and memory issues.160 When the ALJ asked Mr. Absyed whether he could

5

understand the text of an English newspaper, he said he could, but that sometimes he had to focus

6

more to understand the meaning of the paragraph.161
Mr. Milam asked Mr. Absyed if he still held a security-guard license and its expiration date.162

7
8

Mr. Absyed answered that his security-guard license was active until February 2015.163 When

9

asked whether he carried a weapon, Mr. Absyed said that he did not.164 Mr. Milam inquired
whether Mr. Absyed believed he could go back to his security-guard job.165 Mr. Absyed said he

11
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Northern District of California

10

could not because of his spinal issue, which kept him from sitting, lying down, or walking for

12

extended periods of time.166 Mr. Milam asked how long Mr. Absyed could sit at one time, and Mr.

13

Absyed replied that he could sit for less than 30 minutes before his heart beat would increase

14

rapidly and he needed to walk around.167 He said that while shifting around in his chair was not

15

helpful, walking around for five to ten minutes before sitting down again was.168 Mr. Absyed

16

added that he could be on his feet for only 30 minutes before having to sit down again.169

17
18
19
158

AR 71.

159

Id.

21

160

Id.

22

161

AR 71‒72.

162

AR 72.

163

Id.

24

164

Id.

25

165

Id.

166

Id.

167

Id.

27

168

AR 73.

28

169

Id.

20

23

26

ORDER — No. 15-cv-02328-LB

16

Mr. Milam then asked Mr. Absyed how many pounds he could lift, to which Mr. Absyed

1
2

replied that he could lift only 5 pounds because of his right-hand pain.170 Mr. Absyed also testified

3

that he had constant pain in his neck and back.171 Although he was offered the option of surgery,

4

he stated that he could not take the risk because of his liver issues.172
Mr. Milam then questioned Mr. Absyed about any problems related to his hepatitis or

5
6

cirrhosis.173 While Mr. Absyed answered that his blood and liver are checked every six months

7

because these issues cannot be cured, Mr. Milam clarified whether Mr. Absyed’s back problem

8

would keep him from working.174 Mr. Absyed responded that he experienced ongoing liver and

9

gallbladder pain that precluded him from working.175
Mr. Milam asked Mr. Absyed whether he had any issues with fatigue.176 Mr. Absyed

10

United States District Court
Northern District of California

11

responded that he did experience fatigue and woke up tired.177 When asked whether he was still

12

having problems with nausea and the frequency of the nausea, Mr. Absyed testified that he had

13

nausea 30 minutes after eating, which prevented him from cleaning up afterwards.178 Mr. Milam

14

then asked how often Mr. Absyed experienced nausea, and Mr. Absyed said he did not know the

15

reason for the nausea, but that it was due to pain and his stomach being unable to empty food.179

16

Mr. Milam again clarified his question, asking how often Mr. Absyed experienced problems with

17

nausea and vomiting.180 Mr. Absyed replied, “when I had surgery of my gallbladder.”181 Mr.

18

Milam then asked whether he had nausea or vomiting on the day of the hearing, to which Mr.

19
170

20
171

Id.
AR 74.

21

172

Id.

22

173

Id.

174

AR 75.

175

Id.

24

176

Id.

25

177

Id.

178

Id.

179

Id.

27

180

Id.

28

181

AR 76.

23

26

ORDER — No. 15-cv-02328-LB

17

1

Absyed replied that he did.182 When asked whether he experienced nausea the day before and

2

whether he had it almost every day, Mr. Absyed stated that he had it the day before and that he

3

thought he had it almost every day.183
Mr. Milam asked what Mr. Absyed does to help reduce his problems with nausea and

4
5

vomiting.184 Mr. Absyed replied that the doctor does not allow him to take too many medications

6

due to side effects.185 When asked whether that means that he must “live with it,” Mr. Absyed said

7

that he cannot eat too much and that he does not know.186
Mr. Milam further asked Mr. Absyed about any changes in his activities.187 He first asked Mr.

9

Absyed whether he ever has to lie down, to which Mr. Absyed replied that he had to lie down and

10

sleep for 15 to 20 minutes.188 He also explained that his activities subsequently changed.189 When

11
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Northern District of California

8

Mr. Milam asked what changed, Mr. Absyed stated that he was very healthy before and now he

12

was very weak.190 Mr. Milam then asked what kind of things Mr. Absyed stopped doing.191 Mr.

13

Absyed responded that he had stomach, liver, and spinal pain, for which his doctor prescribed pain

14

and sleeping medication.192 Mr. Milam again clarified that he asked Mr. Absyed about how his

15

activities had changed, asking whether he could do everything he used to do before or whether he

16

had to cut back on those activities.193 Mr. Absyed stated that after eating breakfast, he usually took

17

his medication and rested for 15‒20 minutes.194 Again stating his original question, Mr. Milam

18
19

23
24
25
26
27
28

Id.

185

Id.

186

Id.

187

Id.
Id.

189

Id.

190

AR 76‒77.

191

AR 77.

192

22

Id.

188

21

Id.

183
184

20

182

Id.

193

Id.

194

Id.

ORDER — No. 15-cv-02328-LB

18

1

asked what kind of things Mr. Absyed stopped doing, to which he responded that he could no

2

longer take care of his apartment, feed himself, or attend religious activities.195 He added that his

3

wife helped “a little bit” with these tasks.196 When asked whether he attends a religious institution,

4

Mr. Absyed testified that although he did in the past, he had to stop attending religious activities

5

because his health did not allow him to do so.197
Mr. Milam questioned Mr. Absyed about the length of his hepatitis treatment with

6
7

Interferon.198 Mr. Absyed testified that he received the treatment for almost six months.199 Mr.

8

Milam further asked whether the doctors had discussed giving Mr. Absyed further treatment with

9

Interferon.200 Mr. Absyed stated “[i]t depends on the doctors and if [his] liver doctor got the same

10

thing,” then they would give him further treatment and he would also need surgery.201
Mr. Absyed testified that he uses heat for his pain.202 Mr. Milam then questioned Mr. Absyed

United States District Court
Northern District of California

11
12

about whether he used any kind of braces for his back or neck.203 Mr. Absyed replied: “No.

13

Sometimes but not every time.”204 When asked about doing any kind of stretching or exercising,

14

Mr. Absyed testified that he could not do so because whenever he did light exercises, he felt pain

15

in his stomach that caused him to vomit.205

16

Mr. Milam asked Mr. Absyed if he ever noticed swelling in his stomach area, clarifying

17

whether he noticed the swelling after his gallbladder surgery.206 Mr. Absyed stated that after the

18
19
195

AR 77‒78.

196

AR 77.

21

197

AR 77‒78.

22

198

AR 78.

199

Id.

200

Id.

24

201

Id.

25

202

Id.

203

Id.

204

Id.

27

205

AR 79.

28

206

Id.

20

23

26

ORDER — No. 15-cv-02328-LB

19

1

surgery he did have that problem.207 The ALJ asked whether he gets swollen, and Mr. Absyed

2

replied “huh,” and then Mr. Milam proceeded with his next question.208 Mr. Milam asked whether

3

Mr. Absyed’s doctors were doing anything about the stomach swelling, but Mr. Absyed testified

4

that his doctor told him that he had to “live with this kind of problem” and that they could not do

5

anything about it.209

6

After Mr. Milam concluded his questioning of Mr. Absyed, the ALJ asked what Mr. Absyed

7

could do physically.210 Referring to Mr. Absyed’s earlier testimony that he could only be on his

8

feet for 30 minutes, the ALJ asked whether that meant standing, walking, or both.211 Mr. Absyed

9

stated that he could not stand for 30 minutes.212 When asked about walking and the distance he
could walk, Mr. Absyed replied that due to his condition, he had to walk very slowly.213 The ALJ

11
United States District Court
Northern District of California

10

then asked Mr. Absyed whether he could walk one mile.214 Mr. Absyed said that he could, but not

12

after the surgery.215 The ALJ asked whether on the day of Mr. Absyed’s testimony he could walk

13

for one mile, to which Mr. Absyed responded that he could not.216 When questioned how far he

14

could walk, Mr. Absyed stated that he could walk two or three blocks in 45 minutes.217 Mr.

15

Absyed testified that he drove a car short distances to buy groceries.218 Lastly, the ALJ asked

16

whether Mr. Absyed was right- or left-handed, to which he responded that he is right-handed.219

17
18
207

Id.

208

Id.

209

Id.

21

210

Id.

22

211

AR 79‒80.

212

AR 80.

213

Id.

24

214

Id.

25

215

Id.

216

Id.

217

Id.

27

218

Id.

28

219

AR 81.

19
20

23

26

ORDER — No. 15-cv-02328-LB

20

1

2.3 Vocational-Expert Testimony

2

Vocational Expert Linda Ferra testified at the hearing on May 22, 2014.220 The ALJ first asked

3

Ms. Ferra to give a summary of Mr. Absyed’s work history.221 Ms. Ferra stated that Mr. Absyed

4

has worked primarily as a security guard, a semiskilled position that is light in exertion.222 For Mr.

5

Absyed’s work as an assistant manager, Ms. Ferra explained that there is no code for “assistant

6

manager” in the Dictionary of Occupational Titles (DOT).223 Therefore, unless a person is a

7

manager, the position is classified as a cashier checker (cashier II), even though he may have been

8

a lead worker.224 Ms. Ferra further stated that Mr. Absyed’s position as a cashier checker is

9

considered a semiskilled job with light exertion.225
The ALJ asked whether the skills acquired through Mr. Absyed’s security guard and cashier

10

United States District Court
Northern District of California

11

positions would transfer to other light or sedentary work.226 Ms. Ferra replied that it would not.227

12

The ALJ posed a hypothetical question about whether an individual of Mr. Absyed’s age,

13

education level, and work experience could perform any of his past relevant work if that person

14

had the following limitations: (1) capable of light exertional activity, including the ability to

15

occasionally climb ramps and stairs and the ability to occasionally balance, stoop, kneel, crouch,

16

crawl, and climb ramps and stairs, but never climb ladders, ropes, and scaffolds; (2) “frequent

17

handle and finger” of the right dominant upper extremity with no forceful gripping or other

18

manipulative limits; and (3) no exposure to any hazards, such as unprotected heights and

19
20
21
22
220

AR 63.

221

AR 81.

24

222

Id.

25

223

Id.

224

Id.

225

AR 82.

27

226

Id.

28

227

Id.

23

26

ORDER — No. 15-cv-02328-LB

21

1

dangerous machinery.228 Ms. Ferra testified that such a person could perform Mr. Absyed’s past

2

work.229
The ALJ asked Ms. Ferra how many absences per month employers customarily tolerate. 230

3
4

Ms. Ferra testified that employers customarily tolerate anywhere between 6 and 12 absences per

5

year.231 She further explained that this figure assumes that an employee may be absent for 3 or 4

6

days in one month with the flu, at which time and employer will anticipate that the employee will

7

not be absent again for a long time.232 The ALJ further asked how much time employers would

8

customarily tolerate for time off task for any reason.233 Ms. Ferra responded that employers would

9

tolerate no more than 10% time off task in excess of regularly scheduled breaks.234

10

United States District Court
Northern District of California

11

2.4 Administrative Findings

12

The ALJ held that Mr. Absyed was not disabled within the meaning of the Social Security Act

13

from March 18, 2011, through June 13, 2014 (the date of the ALJ decision).235
The ALJ identified the SSA’s five-step evaluation process to determine whether an individual

14
15

is disabled.236 At step one, the ALJ must determine whether the individual is engaging in

16

“substantial gainful activity.”237 At step two, the ALJ must determine whether the individual had a

17

medically determinable impairment that is “severe” or a combination of impairments that is

18

“severe.”238 At step three, the ALJ must determine whether the individual’s impairments are

19
20
228

AR 82‒83.

21

229

AR 83.

22

230

Id.

231

Id.

232

Id.

24

233

Id.

25

234

Id.

235

AR 21.

236

AR 22.

27

237

Id.

28

238

Id.

23

26

ORDER — No. 15-cv-02328-LB

22

1

severe enough to meet a listed impairment.239 At step four, the ALJ must first determine the

2

individual’s “residual functional capacity” and then determine whether the individual could

3

perform the requirements of his “past relevant work.”240 At step five, the ALJ must determine

4

whether the individual can perform any other work, taking into account the individual’s residual

5

functional capacity, age, education, and work experience.241
At step one, the ALJ found that Mr. Absyed did not engage in substantial gainful activity since

6
7

March 18, 2011, the alleged onset date.242
At step two, the ALJ found that Mr. Absyed had the following severe impairments: “multi-

8

level DDD (including advanced canal stenosis C3-T1); cirrhosis; hepatitis C; and a history of

10

thrombocytopenia (with no history of transfusions).”243 The ALJ found that these impairments

11
United States District Court
Northern District of California

9

significantly limited Mr. Absyed’s work-related activity.244 Mr. Absyed also reported several non-

12

severe impairments that the ALJ stated did not result in a significant limitation in work related

13

activity, including: diabetes, pancreatitis and abdominal pain, eye impairments, obesity, sinus

14

impairment, hand impairment, hypertension, and depression.245

15

At step three, the ALJ found that Mr. Absyed did not have an impairment or combination of

16

impairments that met or medically equaled a listed impairment.246 In making this determination,

17

the ALJ reviewed Mr. Absyed’s impairments under the abdominal, musculoskeletal, and

18

hematology listings and determined that Mr. Absyed’s impairments did not meet or equal a

19
20
21
22
239

Id.

240

AR 22‒23.

24

241

AR 23.

25

242

Id.

243

Id.

244

Id.

27

245

AR 24‒25.

28

246

AR 26.

23

26

ORDER — No. 15-cv-02328-LB

23

1

listing.247 Among other things, the ALJ stated that Mr. Absyed did not provide evidence of ascites

2

or an inability to ambulate effectively.248
Before considering the fourth step, the ALJ determined that Mr. Absyed had the residual

3
4

functional capacity (“RFC”) to perform light work.249 The ALJ determined that this work was

5

limited to occasional balancing, stooping, kneeling, crouching, crawling, and climbing of ramps

6

and stairs.250 Also, the work was limited to frequent handling and fingering, with no forceful

7

gripping with the right dominant upper extremity.251 The ALJ determined that Mr. Absyed was not

8

to climb ladders, ropes, and scaffolds.252 Lastly, the ALJ found that Mr. Absyed must avoid all

9

exposure to work related hazards, including unprotected heights and dangerous machinery.253

10

To make this RFC determination, the ALJ followed a two-step process in which he (1)

United States District Court
Northern District of California

11

determined whether there were underlying medically determinable physical or mental impairments

12

that could reasonably be expected to produce Mr. Absyed’s pain or other symptoms, and (2)

13

determined the extent to which the impairments limited Mr. Absyed’s functioning.254 The ALJ

14

considered Mr. Absyed’s testimony regarding his ability to work, pain level, injuries, pain

15

treatment, and abilities.255 After considering the evidence, the ALJ determined that Mr. Absyed’s

16

medically determinable impairment could reasonably be expected to cause the alleged symptoms,

17

but the ALJ did not accept Mr. Absyed’s statements about the intensity, persistence, and limiting

18

effects of these symptoms.256 The ALJ considered multiple credibility factors, including: (1) Mr.

19

Absyed’s intermittent complaints; (2) the lack of corroborative clinical findings; (3) the absence of

20
21

247

Id.

22

248

Id.

249

Id.

250

Id.

24

251

Id.

25

252

Id.

253

Id.

254

Id.

27

255

Id.

28

256

AR 28.

23

26

ORDER — No. 15-cv-02328-LB

24

1

corroborative diagnostic findings; (4) Mr. Absyed’s disability-seeking behaviors; and (5) his

2

receipt of routine and conservative treatment.257
Although Mr. Absyed testified about short-term memory loss while receiving hepatitis C

3
4

treatment, the ALJ determined that there was no evidence that the memory loss, if any, was

5

severe.258 The ALJ cited to the fact that Mr. Absyed’s doctors did not refer him for

6

neuropsychological testing or recommend any precautions, such as not driving.259 The doctors

7

consistently noted normal mental-status findings for Mr. Absyed, who consistently declined

8

mental-health treatment or referrals.260 The ALJ therefore determined that Mr. Absyed’s claim of

9

severe memory loss was not credible.261
Mr. Absyed testified that he could not work due to his inability to stand or walk for longer than

11
United States District Court
Northern District of California

10

30 minutes.262 But the ALJ determined that Mr. Absyed did not present evidence that he could not

12

perform the standing associated with light work.263 The ALJ noted that this testimony was not

13

corroborated by the record because Mr. Absyed never reported trouble with standing or

14

walking.264 The only difficulty he reported was some right arm numbness and weakness that was

15

worse when standing.265 Relying on medical evidence that showed “normal motor strength in the

16

lower extremities” and X-rays that did not reveal any “obvious instability,” the ALJ found that Mr.

17

Absyed’s testimony about his inability to stand for extended periods of time was not supported by

18

the evidence.266

19
20
21

257

AR 28–29.

22

258

AR 29.

259

Id.

260

Id.

24

261

Id.

25

262

Id.

263

Id.

264

Id.

27

265

Id.

28

266

Id.

23

26

ORDER — No. 15-cv-02328-LB

25

Mr. Absyed also testified that he can sit for a maximum of 30 minutes.267 But the ALJ again

1
2

determined that Mr. Absyed did not present evidence that he could not do the sitting associated

3

with light work.268 The ALJ relied on the fact that Mr. Absyed never reported trouble sitting to his

4

doctors, instead reporting that his musculoskeletal pain was better when sitting.269 The medical

5

evidence was not consistent with an individual with trouble sitting because it was consistently

6

noted that Mr. Absyed appeared “comfortable and in no acute distress.”270 The ALJ also noted that

7

Mr. Absyed did not exhibit any obvious problems sitting during the hearing.271
The ALJ further determined that Mr. Absyed’s testimony about only being able to lift 5

8
9

pounds was not supported by the record.272 The ALJ noted that although Mr. Absyed complained
about intermittent right arm pain and weakness, he denied experiencing these symptoms in July

11
United States District Court
Northern District of California

10

2013.273 According to the ALJ, the medical evidence revealed that, at most, some doctors noted a

12

slight reduction in motor strength of the upper extremities, while others noted normal strength. 274

13

The ALJ pointed out that Mr. Absyed only received routine and conservative treatment with

14

medication and short-term physical therapy.275 And the ALJ considered a doctor’s note that, as of

15

November 2013, Mr. Absyed did not show any progression of symptoms. 276
The ALJ considered Mr. Absyed’s testimony that he had liver and gallbladder pain that did not

16
17

allow him to work.277 The ALJ noted that the record showed that Mr. Absyed intermittently

18

complained about abdominal pain, but that the doctors were unsure of the origin.278 The ALJ also

19
267

Id.

268

Id.

21

269

Id.

22

270

Id.

271

Id.

272

Id.

24

273

Id.

25

274

Id.

275

Id.

276

Id.

27

277

Id.

28

278

Id.

20

23

26

ORDER — No. 15-cv-02328-LB

26

1

noted that, after Mr. Absyed successfully received hepatitis C treatment, he continued to complain

2

about abdominal tenderness, but for which there was no evidence suggesting that he could not

3

work.279 In fact, the ALJ pointed out, Mr. Absyed reported that he was “doing fine” in March

4

2013, and his doctor stated that he could return to work, despite his symptoms.280 Mr. Absyed also

5

reported that he was told by his doctors to “learn to live with his chronic abdominal wall pain,” but

6

the ALJ noted that he could not find any evidence that such a statement was ever made to Mr.

7

Absyed.281 The ALJ reported that the only recommendation, according to the medical evidence,

8

was for Mr. Absyed to get tested for H Pylori because Mr. Absyed reported that his pain

9

symptoms previously improved when he underwent treatment.282
The ALJ also considered Mr. Absyed’s testimony that his ongoing fatigue required him to

11
United States District Court
Northern District of California

10

frequently lie down throughout the day.283 The ALJ determined that the evidence did not support

12

that Mr. Absyed suffered from fatigue that would preclude light work with appropriate

13

restrictions.284 The ALJ noted that while Mr. Absyed reported some fatigue during his hepatitis C

14

treatment, it appeared to be a temporary side effect, as the medical evidence did not indicate any

15

findings consistent with an individual suffering from debilitating fatigue and Mr. Absyed was

16

consistently noted as appearing “well,” “in no acute distress,” and with “normal motor

17

strength.”285 Further, the ALJ discussed, Dr. Man opined that Mr. Absyed did not need to lie down

18

or elevate his legs, and another doctor recommended regular exercise.286
The ALJ determined that Mr. Absyed’s testimony about suffering from nausea and vomiting

19
20

“almost every day” was not supported by the record.287

21
279

AR 29‒30.

280

AR 30.

281

Id.

24

282

Id.

25

283

Id.

284

Id.

285

Id.

27

286

Id.

28

287

Id.

22
23

26

ORDER — No. 15-cv-02328-LB

27

The ALJ gave limited weight to the opinions of Dr. Man because his medical source

1
2

statements in January 2014 and May 2014 appeared “vague and inconsistent with each other.”288

3

The ALJ stated that in his January 2014 statement, Dr. Man opined that Mr. Absyed could sit

4

indefinitely and stand and walk for a maximum of 5 minutes at one time.289 But, Dr. Man further

5

opined that Mr. Absyed could only sit for 4 hours and stand and walk for a maximum of 2 hours

6

during an 8-hour workday.290 The ALJ further wrote that in his May 2014 statement, Dr. Man

7

opined that Mr. Absyed “could perform all sit, standing, and walking for ‘several hours.’”291 The

8

ALJ stated that due to the vagueness and inconsistencies between the two statements, if he were

9

going to give significant weight to the statements, he would give it to the May 2014 opinion

10

because it reflected Mr. Absyed’s functioning after his hepatitis C became undetectable.292
The ALJ gave significant weight to the DDS medical consultants’ opinion that Mr. Absyed

United States District Court
Northern District of California

11
12

could perform light work with some restrictions.293 The ALJ determined that this opinion was

13

consistent with Mr. Absyed’s “intermittent complaints, clinical and diagnostic findings, and the

14

successful hepatitis C Interferon treatment.”294

15

At step four, the ALJ determined that Mr. Absyed was capable of performing his past relevant

16

work as a security guard and “cashier/checker” because this work did not require the performance

17

of work-related activities precluded by Mr. Absyed’s RFC.295 The ALJ noted that his past relevant

18

work was completed within the last 15 years, long enough to have learned the jobs.296 The ALJ

19

compared Mr. Absyed’s RFC with the physical and mental demands of this work and found that

20
21
288

Id.

289

Id.

290

Id.

24

291

Id.

25

292

Id.

293

Id.

294

Id.

27

295

Id.

28

296

Id.

22
23

26

ORDER — No. 15-cv-02328-LB

28

1

he would be able to perform it “as actually and generally performed.”297 The ALJ further relied on

2

the VE’s testimony that “an individual with the [Mr. Absyed’s] age, education, work profile, and

3

assessed limitations could perform this work as generally and actually performed.”298
The ALJ therefore determined that Mr. Absyed was not disabled from March 18, 2011,

4
5

through the date of the ALJ decision.299

6
ANALYSIS

7
8

1. Standard of Review
Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the

10

Commissioner if the claimant initiates the suit within 60 days of the decision. District courts may

11
United States District Court
Northern District of California

9

set aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error

12

or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d

13

586, 591 (9th Cir. 2009) (internal quotations omitted); 42 U.S.C. § 405(g). “Substantial evidence

14

means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a

15

reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d

16

1035, 1039 (9th Cir. 1995). If the evidence in the administrative record supports both the ALJ’s

17

decision and a different outcome, the court must defer to the ALJ’s decision and may not

18

substitute its own decision. See id. at 1039–40; Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir.

19

1999).

20
21

2. Applicable Law

22

An SSI claimant is considered disabled if he or she suffers from a “medically determinable

23

physical or mental impairment which can be expected to result in death or which has lasted or can

24

be expected to last for a continuous period of not less than twelve months,” and the “impairment

25
26
297

AR 31.

27

298

Id.

28

299

Id.

ORDER — No. 15-cv-02328-LB

29

1

or impairments are of such severity that he is not only unable to do his previous work but cannot,

2

considering his age, education, and work experience, engage in any other kind of substantial

3

gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A), (B).

4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17

There is a five-step analysis for determining whether a claimant is disabled within the meaning
of the Social Security Act. See 20 C.F.R. § 404.1520. The five steps are as follows:
Step One. Is the claimant presently working in a substantially gainful activity? If
so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant
is not working in a substantially gainful activity, then the claimant’s case cannot be
resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R.
§ 404.1520(a)(4)(i).
Step Two. Is the claimant’s impairment (or combination of impairments) severe? If
not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20
C.F.R. § 404.1520(a)(4)(ii).
Step Three. Does the impairment “meet or equal” one of a list of specified
impairments described in the regulations? If so, the claimant is disabled and is
entitled to benefits. If the claimant’s impairment does not meet or equal one of the
impairments listed in the regulations, then the case cannot be resolved at step three,
and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii).
Step Four. Considering the claimant’s residual functional capacity (“RFC”), is the
claimant able to do any work that he or she has done in the past? If so, then the
claimant is not disabled and is not entitled to benefits. If the claimant cannot do any
work he or she did in the past, then the case cannot be resolved at step four, and the
case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv).

22

Step Five. Considering the claimant’s RFC, age, education, and work experience,
is the claimant able to “make an adjustment to other work?” If not, then the
claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If
the claimant is able to do other work, the Commissioner must establish that there
are a significant number of jobs in the national economy that the claimant can do.
There are two ways for the Commissioner to show other jobs in significant
numbers in the national economy: (1) by the testimony of a vocational expert or (2)
by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart
P, app. 2. See 20 C.F.R. § 404.1520(a)(4)(v).

23

For steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098.

18
19
20
21

24

At step five, the burden shifts to the Commissioner to show that the claimant can do other kinds of

25

work. Id.

26
27
28
ORDER — No. 15-cv-02328-LB

30

1

3. Application

2

Mr. Absyed argues that the ALJ twice erred in his disability determination. 300 First, he argues,

3

the ALJ erred in his RFC determination because he improperly gave limited weight to the opinion

4

of treating physician Dr. Man.301 Second, Mr. Absyed asserts, the ALJ erred when he discredited

5

Mr. Absyed’s testimony.302

6
7

3.1 The ALJ Erred in Assigning Limited Weight to Treating Physician Dr. Man’s
Opinions

8

The first issue is whether there is substantial evidence supporting the ALJ’s decision to give

9

limited weight to the opinion of treating, primary-care physician Dr. Man.
The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving

10

United States District Court
Northern District of California

11

ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d

12

at 1039). An ALJ may not, however, interject or substitute her own medical opinion or diagnosis

13

for that of the claimant’s physician. See Tackett, 180 F.3d at 1102–03; Day v. Weinberger, 522

14

F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden from making his own medical assessment

15

beyond that demonstrated by the record); see also Ladue v. Chater, No. C-95-0754 EFL, 1996 WL

16

83880, at *3 (N.D. Cal. Feb. 16, 1996) (stating that “[d]isability hearings are not adversarial in

17

nature” and “the ALJ has duty to develop the record” and “inform himself about [the] facts,” even

18

if “the claimant is represented by counsel”).

19

In weighing and evaluating the evidence, the ALJ must consider the entire case record,

20

including each medical opinion in the record, together with the rest of the relevant evidence. 20

21

C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing

22

court must [also] consider the entire record as a whole and may not affirm simply by isolating a

23

specific quantum of supporting evidence.”) (internal quotations omitted)).

24
25
26
300

See Motion for Summary Judgment at 15–27.

27

301

See id. at 15–21.

28

302

See id. at 21–25.

ORDER — No. 15-cv-02328-LB

31

1

Social Security regulations distinguish between three types of physicians: treating physicians;

2

examining physicians; and non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v.

3

Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more

4

weight than an examining physician’s, and an examining physician’s opinion carries more weight

5

than a reviewing [non-examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th

6

Cir. 2001) (citing Lester, 81 F.3d at 830); see also Sprague v. Bowen, 812 F.2d 1226, 1231 (9th

7

Cir. 1987) (the opinion of a treating physician is generally given the greatest weight because the

8

treating physician “is employed to cure and has a greater opportunity to know and observe the

9

patient as an individual”); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
Accordingly, “[i]n conjunction with the relevant regulations, [the Ninth Circuit has] developed

11
United States District Court
Northern District of California

10

standards that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of

12

Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). “To reject [the]

13

uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing

14

reasons that are supported by substantial evidence.” Id. (alteration in original) (internal quotations

15

omitted). If the ALJ finds that the opinion of a treating physician is contradicted, the ALJ must

16

provide “specific and legitimate reasons supported by substantial evidence in the record.” Reddick

17

v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotations omitted); see also Garrison, 759

18

F.3d at 1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s

19

opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported

20

by substantial evidence.”) (internal quotations omitted)). “Where an ALJ does not explicitly reject

21

a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over

22

another, he errs.” Id.; see also 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating source’s

23

opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-

24

supported by medically acceptable clinical and laboratory diagnostic techniques and is not

25

inconsistent with the other substantial evidence in [the claimant’s] case record, we will give it

26

controlling weight.”).

27

“If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-

28

supported’ or because it is inconsistent with other substantial evidence in the record, the [Social
ORDER — No. 15-cv-02328-LB

32

1

Security] Administration considers specified factors in determining the weight it will be given.”

2

Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the

3

frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment

4

relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R.

5

§ 404.1527(b)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any

6

medical opinion, not limited to the opinion of the treating physician, include the amount of

7

relevant evidence that supports the opinion and the quality of the explanation provided[,] the

8

consistency of the medical opinion with the record as a whole[, and] the specialty of the physician

9

providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)). Even if the treating
physician’s opinion is not entitled to controlling weight, it still is entitled to deference. See id. at

11
United States District Court
Northern District of California

10

632 (citing SSR 96-02p at 4 (Cum. Ed. 1996), 61 Fed. Reg. 34,490, 34,491 (July 2, 1996)).

12

Indeed, “[i]n many cases, a treating source’s medical opinion will be entitled to the greatest weight

13

and should be adopted, even if it does not meet the test for controlling weight.” Id. (quoting SSR

14

96-02p at 4).

15

Finally, an “ALJ errs when he rejects a medical opinion or assigns it little weight” without

16

explanation or without explaining why “another medical opinion is more persuasive, or criticiz[es]

17

it with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison,

18

759 F.3d at 1012–13.
Here, the ALJ gave “limited weight” to treating physician Dr. Man’s opinions when

19
20

determining that Mr. Absyed had the RFC to perform “light work,” with certain limitations.303

21

In his January 2014 opinion, Dr. Man believed that the medical problems for which he had

22

treated Mr. Absyed “preclude him from performing any full-time work at any exertion level,

23

including the sedentary level.”304 Dr. Man identified severe depression, cirrhosis of the liver, and

24

spinal stenosis as Mr. Absyed’s primary impairments.305 Dr. Man also indicated that Mr. Absyed

25
303

26
27
28

AR 26, 30.

AR 830. The “sedentary level,” as defined on the form (by the SSA), includes “lifting no more than
10 pounds, sitting for 6 hours in an 8-hour work day, and standing/walking for 2 hours in an 8-hour
work day.” Id.
304

305

Id.

ORDER — No. 15-cv-02328-LB

33

1

could, “[a]t one time, without rest or support,” sit indefinitely and stand and/or walk for 5–10

2

minutes.306 Over an 8-hour period (i.e. a work day), Dr. Man stated that Mr. Absyed could sit for 4

3

hours and stand and/or walk for 2 hours.307 He indicated that Mr. Absyed did not need to lie down

4

or elevate his legs, and he identified no additional work limitations.308 Dr. Man believed that Mr.

5

Absyed had been disabled since March 2011.309

6

In Dr. Man’s May 2014 opinion, he again indicated that Mr. Absyed’s medical problems

7

“preclude him from performing any full-time work at any exertion level.”310 This time, he listed

8

depression, hand pain, and abdominal pain as Mr. Absyed’s primary impairments.311 He indicated

9

that Mr. Absyed could, “[a]t one time, without rest or support,” sit for several hours and stand
and/or walk for several hours.312 And, over an 8-hour period, Dr. Man believed that Mr. Absyed

11
United States District Court
Northern District of California

10

could sit for several hours and stand and/or walk for several hours.313 Dr. Man again indicated that

12

Mr. Absyed need not lie down or elevate his legs, but this time noted that Mr. Absyed had an

13

additional work limitation concerning the use of his hands.314 Dr. Man believed that Mr. Absyed

14

had been disabled since June 2013.315
The ALJ assigned “limited weight” to Dr. Man’s two opinions.316 The ALJ “note[d] that Dr.

15
16

Man’s medical source statements are vague and inconsistent with each other.”317 The ALJ

17

indicated that “[i]f [he] were going to give significant weight to either statement, [he] would give

18

it to the more recent one [from May 2014], since it reflects [Mr. Absyed’s] functioning after his

19
306

Id.

307

Id.

21

308

Id.

22

309

Id.

310

AR 939.

311

Id.

24

312

Id.

25

313

Id.

314

Id.

315

Id.

27

316

AR 30.

28

317

Id.

20

23

26

ORDER — No. 15-cv-02328-LB

34

1

Hepatitis C became undetectable.”318 The ALJ did not give any additional reasons for assigning

2

limited weight to Dr. Man’s opinions. The ALJ did, however, give significant weight to “the DDS

3

medical consultants’ opinion that [Mr. Absyed] would have limitations consistent with a restricted

4

range of light work.”319 The ALJ reasoned that the DDS consultants’ opinions “are consistent with

5

[Mr. Absyed’s] intermittent complaints, the clinical findings, the diagnostic findings, and the

6

claimant’s successful Interferon treatment.”320
Because the DDS consultants’ opinions contradicted Dr. Man’s opinions — they said he could

7

perform light work whereas Dr. Man said he could not — the court reviews the ALJ’s

9

determination on the more deferential “substantial evidence” standard to ensure that the decision

10

was based on “specific and legitimate reasons supported by substantial evidence in the record,”

11
United States District Court
Northern District of California

8

rather than on the “clear and convincing” evidence standard for “uncontradicted” medical

12

evidence. See Garrison, 759 F.3d at 1012; Ryan, 528 F.3d at 1198. But, under that more

13

deferential standard, the ALJ did not give specific and legitimate reasons supported by substantial

14

evidence to give limited weight to Dr. Man’s two opinions.
First, the ALJ did not sufficiently explain why Dr. Man’s opinions are vague and inconsistent.

15
16

The Commissioner argues that the opinions’ inconsistency and vagueness is “readily apparent on

17

the faces of the questionnaires.”321 There are indeed some differences (potential inconsistencies) in

18

the two forms. For example, Dr. Man identified different primary impairments: in January, he

19

identified severe depression, cirrhosis of the liver, and spinal stenosis;322 in May, he identified

20

depression, hand pain, and abdominal pain.323 He also reported differently Mr. Absyed’s ability to

21

sit, stand, and walk: in January, Mr. Absyed could sit indefinitely and stand and/or walk for 5–10

22
23
24

318

Id.

25

319

Id.

320

Id.

321

See Cross-Motion for Summary Judgment at 10.

27

322

AR 830.

28

323

AR 939.

26

ORDER — No. 15-cv-02328-LB

35

1

minutes;324 in May, he could sit for several hours and stand and/or walk for several hours.325 Dr.

2

Man additionally identified different disability onset dates: March 2011 and June 2013.326
But there are consistencies: in both opinions, Dr. Man felt that Mr. Absyed’s medical problems

3
4

“preclude him from performing any full-time work at any exertion level, including the sedentary

5

level.”327 And, over an 8-hour period (i.e. a work day), Dr. Man stated in January that Mr. Absyed

6

could sit for 4 hours, and stand and/or walk for 2 hours; in May, he said that Mr. Absyed could sit

7

for several hours, and stand and/or walk for several hours.328 These statements — the difference

8

between 2, 4, and “several” hours — are not necessarily inconsistent.
The ALJ did not, however, discuss these similarities and differences. He instead simply stated

9

that the two opinions are inconsistent and vague. The court thus cannot tell if the ALJ properly

11
United States District Court
Northern District of California

10

discredited the opinions in their entirety or portions thereof, and whether that determination was in

12

fact supported by substantial evidence in the record. For example, there is evidence that Mr.

13

Absyed could not work — Drs. Bhaskar, Friduss, Ready, and Man multiple times noted or

14

extended Mr. Absyed’s work-disability status.329 Indeed, in July 2013, Dr. Man reported that

15

“[d]ue to [Mr. Absyed’s] continuing fatigue after hep[atitis] C treatment, [and] chronic abdominal

16

wall pain,” he felt that Mr. Absyed was “disable[d] for the time being, perhaps long term.”330

17

There is also evidence that he experienced abdominal pain, cirrhosis, depression, spinal stenosis,

18

and hand or arm pain and weakness — all conditions listed on Dr. Man’s opinions.331 This

19

evidence supports Dr. Man’s opinions, and, without more from the ALJ, it is unclear if limited

20

weight to Dr. Man’s opinions is in fact supported by substantial evidence.

21
22
324

AR 830.

325

AR 939.

24

326

AR 830, 939.

25

327

AR 830, 939.

328

Id.

329

See AR 267–68, 269–70, 285–86, 340, 417–18, 639, 646–47, 777.

27

330

AR 777.

28

331

See, e.g., AR 248, 256, 335, 416, 438, 486, 599–600, 636, 694, 777, 788, 811.

23

26

ORDER — No. 15-cv-02328-LB

36

Second, relatedly, the ALJ did not expressly evaluate Dr. Man’s opinions in the context of the

1
2

entire medical record. In fact, the ALJ did not even compare Dr. Man’s own treatment notes to

3

evaluate the January and May 2014 opinions. See Garrison, 759 F.3d at 1013 (noting that the

4

ALJ’s errors were egregious and important where, among other things, she did not (1) “explicitly

5

compare [a treating doctor’s testimony] to other medical evidence” and (2) did not recognize that a

6

check-box form questionnaire was “based on significant experience with [the claimant] and

7

supported by numerous records”). The Commissioner argues that “the ALJ rejected Dr. Man’s

8

opinions because they were inconsistent with evidence from [Mr. Absyed’s] other treating

9

physicians whose examination revealed a significant level of functioning.”332 But the ALJ plainly
did not: the only stated reason for rejecting Dr. Man’s opinions was that they were vague and

11
United States District Court
Northern District of California

10

inconsistent.333 To the extent that the Commissioner seeks to add to or infer from the ALJ’s

12

reasoning, the court cannot accept such post-hoc rationalizations. See Bray v. Comm’r of Soc. Sec.

13

Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law

14

require [courts] to review the ALJ’s decision based on the reasoning and factual findings offered

15

by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have

16

been thinking.”).

17

The Commissioner also argues that, among the ALJ’s reasons for discrediting Dr. Man’s

18

opinion, “State agency reviewing physician Sadda V. Reddy, M.D., evaluated the record before

19

the ALJ and starkly disagreed with Dr. Man’s functional assessment.”334 But, again, the ALJ did

20

not say that this was a reason for giving limited weight to Dr. Man’s opinions and the court cannot

21

accept post-hoc rationalizations. See Bray, 554 F.3d at 1225. And, in any event, “[t]he opinion of a

22

nonexamining medical advisor cannot by itself constitute substantial evidence that justifies the

23

rejection of an examining or treating physician.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d

24

595, 602 (9th Cir. 1999). So although the ALJ gave Dr. Reddy’s opinion “significant weight” it

25

does not constitute substantial evidence to support the limited weight given to Dr. Man’s opinions.

26
332

27
28

Cross-Motion for Summary Judgment at 11–12.

333

See AR 830.

334

See Cross-Motion for Summary Judgment at 13.

ORDER — No. 15-cv-02328-LB

37

The ALJ accordingly erred by failing to: (1) explain how and why Dr. Man’s opinions were

1
2

“vague and inconsistent” — the only stated reason for giving them limited weight; and (2)

3

consider those opinions in the context of the medical evidence, including Dr. Man’s treatment

4

notes.

5
6

3.2 The ALJ Erred in His Adverse Credibility Finding

7

The second issue is whether the ALJ properly evaluated Mr. Absyed’s testimony and found it

8

“not entirely credible.”335
In assessing a claimant’s credibility, an ALJ must make two determinations. Garrison, 759

9

F.3d at 1014. “‘First, the ALJ must determine whether the claimant has presented objective

11
United States District Court
Northern District of California

10

medical evidence of an underlying impairment which could reasonably be expected to produce the

12

pain or other symptoms alleged.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36

13

(9th Cir. 2007) (internal quotations omitted)). Second, if the claimant has produced that evidence,

14

and “there is no evidence of malingering,” the ALJ must provide “specific, clear and convincing

15

reasons for” rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms.

16

Id. at 1014–15 (quoting Smolen, 80 F.3d at 1281). In order to have meaningful appellate review,

17

the ALJ must explain its reasoning and “specifically identify the testimony [from a claimant] she

18

or he finds not to be credible and . . . explain what evidence undermines the testimony.” Treichler

19

v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102, 1103 (9th Cir. 2014) (“Credibility findings must

20

have support in the record, and hackneyed language seen universally in ALJ decisions adds

21

nothing.”) (internal quotations omitted). “That means ‘[g]eneral findings are insufficient.’” Id. at

22

1102 (quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)

23

(“[T]he ALJ must make a credibility determination with findings sufficiently specific to permit the

24

court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.”) (citing Bunnell

25

v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc)). Moreover, the court will “review

26
27
28

335

See AR 28; Motion for Summary Judgment at 21–25.

ORDER — No. 15-cv-02328-LB

38

1

only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ

2

on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010.
An ALJ must not reject a claimant’s subjective complaints supported by “objective medical

3
4

evidence of an underlying impairment . . . based solely on a lack of medical evidence to fully

5

corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)

6

(citing Bunnell, 947 F.2d at 345). In addition to truthfulness and inconsistencies, an ALJ may

7

consider: the nature, location, onset, duration, frequency, radiation, and intensity of any pain;

8

precipitating and aggravating factors (e.g., movement, activity, environmental conditions); type,

9

dosage, effectiveness, and adverse side-effects of any pain medication; treatment, other than
medication, for relief of pain; functional restrictions; and the claimant’s daily activities. Id. (citing

11
United States District Court
Northern District of California

10

Bunnell, 947 F.2d at 346).
Here, at the first step, the ALJ found that Mr. Absyed’s “medically determinable impairments

12
13

could reasonably be expected to cause the alleged symptoms.”336 At the second step, the ALJ

14

considered Mr. Absyed’s “statements concerning the intensity, persistence, and limiting effects of

15

these symptoms.”337 In doing so, the ALJ concluded that Mr. Absyed’s statements “[were] not

16

entirely credible.”338 The ALJ based this determination on several credibility factors, including

17

Mr. Absyed’s “intermittent complaints, the lack of corroborative clinical findings, the absence of

18

corroborative diagnostic findings, [Mr. Absyed’s] disability-seeking behavior . . . , and [his]

19

receipt of routine and conservative treatment.”339

20

The ALJ identified the elements of Mr. Absyed’s testimony that he found not to be credible.

21

The ALJ found not credible Mr. Absyed’s testimony concerning his: (1) memory loss, (2) inability

22

to stand or walk for more than 30 minutes, (3) inability to sit for more than 30 minutes, (4) ability

23

to lift only 5 pounds, (5) continuing pain near his liver and gallbladder, (6) fatigue, which requires

24
25
336

AR 26, 28.

337

See id.

27

338

AR 28.

28

339

AR 28‒29.

26

ORDER — No. 15-cv-02328-LB

39

1

him to lie down frequently, and (7) constant nausea and vomiting almost every day.340 The ALJ

2

provided reasons for rejecting this testimony.341
There are two issues with the ALJ’s reasoning. First, the ALJ rejected much of Mr. Absyed’s

3
4

testimony based principally on an absence of corroborating objective medical evidence. For

5

example, Mr. Absyed testified that he continued to experience memory loss and had “trouble

6

getting his memory back.”342 The ALJ rejected this testimony because the record indicated that the

7

memory loss was a short-term, non-severe side effect during Mr. Absyed’s hepatitis C

8

treatment.343 To support his conclusion, the ALJ cited to the fact that none of Mr. Absyed’s

9

doctors referred him for neuropsychological testing and did not recommend Mr. Absyed take
precautions, such as not driving.344 Another example is Mr. Absyed’s testimony that he can only

11
United States District Court
Northern District of California

10

lift 5 pounds.345 The ALJ rejected this testimony because it was “not supported by the record.”346

12

The ALJ explained that Mr. Absyed complained only intermittently of “some right arm pain and

13

weakness” and that he denied such symptoms in July 2013, that some providers noted (at most)

14

slightly reduced motor strength but others reported normal strength, and that Mr. Absyed received

15

only routine and conservative treatment.347 This reasoning relies principally on the absence of

16

objective medical findings in the record, but the ALJ may not reject a claimant’s testimony

17

“merely because [it is] not supported by objective evidence.” Tonapetyan v. Halter, 242 F.3d

18

1144, 1147 (9th Cir. 2001).

19

Second, the ALJ mischaracterized or read record evidence out of context. For example, the

20

ALJ explained that because Mr. Absyed said he was doing “fine” in March 2013, it was evidence

21

that the long-term pain he reported near his liver and gallbladder was not supported by the

22
340

See AR 29–30.

341

Id.

24

342

AR 29.

25

343

Id.

344

Id.

345

Id.

27

346

Id.

28

347

Id.

23

26

ORDER — No. 15-cv-02328-LB

40

1

evidence.348 The treatment records, however, “must be viewed in light of the overall diagnostic

2

record.” Ghanim, 763 F.3d at 1164. When viewed in its entirety, the record shows that Mr.

3

Absyed continued to suffer from the abdominal pain, even if there were some periods of

4

occasional improvement. Mr. Absyed had consistently complained about the abdominal pain since

5

July 2011.349 The ALJ failed to mention that three days before Mr. Absyed reported he was “fine,”

6

he complained that he had abdominal pain.350 And the ALJ further failed to note that even four

7

months after he was “fine,” Mr. Absyed again reported that he “still feels chronic abdominal

8

pain.”351
Similarly, the ALJ noted that despite Mr. Absyed’s testimony that his “back problem” caused

9

issues with working, he nevertheless declined spinal surgery.352 However, the ALJ neglected to

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Northern District of California

10

include the reason Mr. Absyed decided not to go undergo surgery — an increased risk of post-

12

surgery complications. In fact, Mr. Absyed’s testimony explaining why he made the decision not

13

to have surgery was consistent with his surgeon’s opinion that Mr. Absyed was at a higher risk for

14

developing post-surgical complications due to his liver issues, but this was not mentioned in the

15

ALJ’s decision.353 By implying that Mr. Absyed simply elected not to have surgery for his

16

disability, without mentioning the physician’s high-risk opinion as the reason for Mr. Absyed’s

17

decision, the ALJ further mischaracterized the record.

18

And again, the ALJ discredited Mr. Absyed’s testimony about his memory loss because the

19

ALJ believed it conflicted with the record and because Mr. Absyed “consistently denied mental

20

health treatment or referrals.”354 While it is true that Mr. Absyed declined to “take anything else

21

for depression,” this is not inconsistent with his testimony and does not specifically concern

22
23
348

AR 30.

24

349

See, e.g., AR 248, 256, 267, 327, 334‒35, 430, 775, 777.

25

350

AR 694.

351

AR 775.

352

AR 27, 29, 75.

27

353

AR 74, 937.

28

354

AR 29.

26

ORDER — No. 15-cv-02328-LB

41