April Denise Gray v. Michael J. Astrue, No. 2:2011cv02792 - Document 22 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded for further hearing consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 APRIL DENISE GRAY, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-02792-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 evaluated Plaintiff s excess pain. (JS at 3.) 3 4 This Memorandum Opinion will constitute the Court s findings of 5 fact and conclusions of law. After reviewing the matter, the Court 6 concludes 7 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 8 9 THE ALJ S ASSESSMENT OF PLAINTIFF S EXCESS AND SUBJECTIVE 10 PAIN SYMPTOMS CANNOT BE SUSTAINED 11 Plaintiff raises a single issue, whether the 12 evaluated her excess pain. 13 ALJ properly agrees with Plaintiff s contention that he did not. 14 In his decision, For the reasons to be set forth, the Court the ALJ assessed that Plaintiff has the 15 following severe impairments: hypertension, hypothyroidism, status 16 post gastric bypass, gastro intestinal disorder, anemia, and status 17 post left arm injury. (AR 22.) 18 of chronic gastric pain, the ALJ determined that they were not fully 19 credible. (AR 24-25.) 20 In assessing Plaintiff s complaints The law concerning evaluation of subjective pain complaints is 21 well known. Absent affirmative evidence of malingering, an ALJ must 22 articulate 23 testimony. 24 Credibility assessment factors are enumerated in 20 C.F.R. §§ 404.1529 25 and 416.929, Social Security Ruling ( SSR ) 96-4p, and SSR 96-7p. (See 26 AR at 25.) 27 depreciate Plaintiff s credibility. 28 ... the medical evidence of record does not support her allegation clear and convincing reasons to reject a claimant s Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1985). Here, the ALJ articulated three discrete reasons to 2 The first is stated as follows: 1 that she cannot sustain any work activity. (AR at 24.) 2 assessed 3 limitations are out of proportion to the objective clinical findings, 4 ... 5 daily living are inconsistent with the claimant s allegations of 6 debilitating pain. 7 belies her claims of subjective pain (AR 25), and finally, he cited as 8 a credibility determination factor that she has a history of non- 9 compliance with medication. (AR 25.) that Plaintiff s subjective complaints The ALJ also and alleged The second reason articulated is that Plaintiff s activities of The ALJ noted that Plaintiff s work history also 10 The record contains Plaintiff s testimony at the hearing before 11 the ALJ, which occurred in Palmdale, California on March 4, 2009 (AR 12 38-64), along with substantial medical evidence. 13 briefly summarize each of these. 14 The Court will Plaintiff testified that she worked until approximately July of 15 2006, when she performed services for a child care service. (AR 46.) 16 In September 2006, she was diagnosed as having hypertension, anemia, 17 secondary 18 bradychardia. (AR 203.) 19 medications because of a lack of funds. (Id.) 20 contains significant information documenting what might well be termed 21 precipitious and rapid weight loss. 22 2004, and had dropped to 133 pounds by September 2006. 23 hematocrit (HCT) levels which are reflective of anemia. (AR 203-216, 24 222, 229, 234, 379, 404.) 25 weight by February 2007, and attempted to perform some part-time work 26 activity. (AR 239-240.) 27 253-259.) 28 was hospitalized for severe abdominal pain and vomiting. (AR 397.) status post gastric bypass, hypothyroidism, and She had not refilled her hypertension The record also Plaintiff weighed 160 pounds in She had low She was briefly able to stabilize her In June 2007, her weight was 127 pounds. (AR She last performed part-time work in July 2007, when she 3 1 She was admitted to Antelope Valley Hospital on July 10, 2007, at 2 which time she demonstrated symptoms of severe abdominal pain which 3 were assessed as due to a delayed emptying of her gastric pouch with 4 anastomosis of the gastrojejunostomy status post gastric bypass for 5 morbid obesity. (AR 263, 278-283.) 6 anastomotic gastrojejunostomy that was narrow, she was not able to 7 empty foods well. (AR 278, 289.) 8 hospital three days later, on July 13, 2007, but was readmitted on 9 July 22, 2007 for abdominal pain. (AR 278, 302, 312-488.) 10 Tests showed that because of an Plaintiff was released from the Her weight had dropped to 114 pounds. 11 In September 2007, her care was transferred to High Desert Health 12 System and on October 5, 2007, notes indicate that she had stomach 13 pains, nausea and vomiting for two days, and her weight was 117 14 pounds. (AR 393.) 15 2007, she continued complaining of abdominal pain and difficulty 16 eating. (AR 386, 494.) She again had a low HCT level, and in November 17 She was again admitted to the hospital, this time Olive View UCLA 18 Medical Center, on November 24, 2007 for abdominal pain status gastric 19 bypass which required morphine for her pain, and she was released 20 three days later. (AR 422-427.) 21 functional status and progressive physical decline and recurrent 22 abdominal pain of unclear source since she had had bypass surgery. (AR 23 439-441.) 24 she was not motivated, ate poorly, and was non-compliant with her 25 medications. (AR 439.) 26 440.) 27 28 Hospital notes indicate a poor She was noted to be depressed, and her son observed that She vomited after eating solid foods. (AR Plaintiff was admitted inpatient to Harbor UCLA on December 10, 2007, and discharged the next day. (AR 547-548.) 4 1 Progress notes of the Tarzana Treatment Center from April 15, 2 2008 indicate complaints of stomach pain and recurrent diarrhea. (AR 3 551.) 4 (AR 654.) 5 By May 19, 2008, Plaintiff s weight had dropped to 103 pounds. Thus, Plaintiff has experienced four hospitalizations since July 6 2007, each of them accompanied by symptoms of severe gastrointestinal 7 pain. 8 weight loss. 9 period of approximately two weeks, her weight dropped 13 pounds. (AR 10 253-259, 312-314.) Indeed, by May 2008, her weight had dropped to 103 11 pounds. (AR 654.) As indicated, she has sometimes experienced a precipitious For example, between June 27, 2007 and July 10, 2007, a 12 Considering this record, the ALJ s reliance on the factor of 13 subjective pain complaints not being corroborated by objective medical 14 evidence is difficult to understand. 15 numerous occasions in a relatively short period of time, always 16 because of reasons relating to gastrointestinal issues and pain. 17 extreme weight fluctuations simply cannot be ignored, and appear to be 18 consistent with a chronic absorption problem. Consequently, the ALJ s 19 conclusion that there is no evidence that these impairments causes 20 [sic] significant functional limitations and appear to be well- 21 controlled with medication (AR 24) is simply unsupported by the 22 medical record. Plaintiff was hospitalized on Her 23 While the Commissioner clearly need not accept a claimant s 24 subjective complaints as dispositive of the issue, the record here 25 contains ample objective evidence which corroborates these complaints. 26 Simply because a treating source may not be able to exactly pinpoint 27 the cause of pain complaints is no reason to reject them in and of 28 itself. 5 1 Other factors cited by the ALJ, and now supported by the 2 Commissioner in this litigation, fare no better. One of those factors 3 is 4 analysis of the record does not support a conclusion that the non- 5 compliance is chronic, or that the instances of non-compliance are not 6 explainable for legitimate reasons. 7 the treatment notes occurred in 2006 when Plaintiff had been off her 8 medications for one month. (AR 24.) 9 that Plaintiff did not fill certain prescriptions because she did not asserted non-compliance with medications; however, a careful One instance cited by the ALJ in But the explanation is provided 10 have money. (AR 203.) 11 stated that Plaintiff was not exactly compliant with her home 12 medications and the patient has been quite depressed since her gastric 13 bypass. (AR 423.) The Commissioner argues that the ALJ did not find 14 against Plaintiff on grounds of [medication] non-compliance. (AR 18.) 15 That conclusion is not supported by the language of the decision, 16 where the ALJ specifically commented upon this issue in assessing 17 Plaintiff s credibility. (AR 25.) 18 not dwell extensively on this issue, the question of Plaintiff s 19 mental 20 Commissioner argues that the relationship, if any, of Plaintiff s 21 mental health to her occasional non-compliance with medication is a 22 straw man. (AR 17.) 23 up issues of mental health, but it is the ALJ s obligation to evaluate 24 the record, and if there are any apparent mental health issues, to 25 investigate them. 26 Plaintiff s medical providers, Dr. Yu, observed that in conjunction 27 with Plaintiff s inexact compliance with her medication regimen, she 28 has been quite depressed since her gastric bypass. (AR 423.) state may In another instance, the treating physician very well be Moreover, although the Court will relevant in this context. The He further argues that Plaintiff never brought Moreover, as noted, in November 2007, one of 6 The 1 Court will simply state that on remand, this issue should be properly 2 addressed to determine if it has any applicability. 3 The ALJ also cited Plaintiff s work history as contradicting her 4 claims of excess pain. But, as the Court has read the record, 5 Plaintiff only attempted to do some part-time work as much as she was 6 able, before she was hospitalized in the first of a series of 7 hospitalizations. 8 overcome her impairments and her chronic pain by doing some work, at 9 least, it appears that these attempts were used to fault Plaintiff as Instead of lauding Plaintiff for attempting to 10 being not credible. The Court does not agree that this is a 11 reasonable conclusion based on this record. 12 Finally, the ALJ s indication that because Plaintiff is able to 13 do certain daily living activities, she must not have the extent of 14 pain that she claims, is also not a conclusion which is substantiated 15 in the record. 16 simple meals, do grocery shopping, and manage finances is not at odds 17 with the existence of chronic debilitating pain, and those types of 18 activities do not necessarily translate into an ability to do work. 19 One need not live in a board and care facility to be disabled. 20 Moreover, a fair reading of Plaintiff s testimony is that she manages 21 to do her daily living activities to the extent she is able, dependent 22 on how she is feeling. (See, e.g., AR 51.) The fact that a person can bathe, dress, prepare 23 For the foregoing reasons, the Court will not sustain the ALJ s 24 credibility determination. Upon remand, Plaintiff s credibility as to 25 her subjective pain complaints will be properly evaluated according to 26 case law and regulation. 27 // 28 // 7 1 2 3 This matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 4 5 6 DATED: January 25, 2012 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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