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April Denise Gray v. Michael J. Astrue

January 25, 2012

APRIL DENISE GRAY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly evaluated Plaintiff's excess pain. (JS at 3.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded.

THE ALJ'S ASSESSMENT OF PLAINTIFF'S EXCESS AND SUBJECTIVE

PAIN SYMPTOMS CANNOT BE SUSTAINED

Plaintiff raises a single issue, whether the ALJ properly evaluated her excess pain. For the reasons to be set forth, the Court agrees with Plaintiff's contention that he did not.

In his decision, the ALJ assessed that Plaintiff has the following severe impairments: hypertension, hypothyroidism, status post gastric bypass, gastro intestinal disorder, anemia, and status post left arm injury. (AR 22.) In assessing Plaintiff's "complaints of chronic gastric pain," the ALJ determined that they were not fully credible. (AR 24-25.)

The law concerning evaluation of subjective pain complaints is well known. Absent affirmative evidence of malingering, an ALJ must articulate clear and convincing reasons to reject a claimant's testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1985). Credibility assessment factors are enumerated in 20 C.F.R. §§ 404.1529 and 416.929, Social Security Ruling ("SSR") 96-4p, and SSR 96-7p. (See AR at 25.) Here, the ALJ articulated three discrete reasons to depreciate Plaintiff's credibility. The first is stated as follows: "... the medical evidence of record does not support her allegation that she cannot sustain any work activity." (AR at 24.) The ALJ also assessed that Plaintiff's subjective complaints and "alleged limitations are out of proportion to the objective clinical findings, ..." The second reason articulated is that Plaintiff's activities of daily living "are inconsistent with the claimant's allegations of debilitating pain." The ALJ noted that Plaintiff's work history also belies her claims of subjective pain (AR 25), and finally, he cited as a credibility determination factor that she "has a history of non-compliance with medication." (AR 25.)

The record contains Plaintiff's testimony at the hearing before the ALJ, which occurred in Palmdale, California on March 4, 2009 (AR 38-64), along with substantial medical evidence. The Court will briefly summarize each of these.

Plaintiff testified that she worked until approximately July of 2006, when she performed services for a child care service. (AR 46.) In September 2006, she was diagnosed as having hypertension, anemia, secondary status post gastric bypass, hypothyroidism, and bradychardia. (AR 203.) She had not refilled her hypertension medications because of a lack of funds. (Id.) The record also contains significant information documenting what might well be termed precipitious and rapid weight loss. Plaintiff weighed 160 pounds in 2004, and had dropped to 133 pounds by September 2006. She had low hematocrit (HCT) levels which are reflective of anemia. (AR 203-216, 222, 229, 234, 379, 404.) She was briefly able to stabilize her weight by February 2007, and attempted to perform some part-time work activity. (AR 239-240.) In June 2007, her weight was 127 pounds. (AR 253-259.) She last performed part-time work in July 2007, when she was hospitalized for severe abdominal pain and vomiting. (AR 397.)

She was admitted to Antelope Valley Hospital on July 10, 2007, at which time she demonstrated symptoms of severe abdominal pain which were assessed as due to a delayed emptying of her gastric pouch with anastomosis of the gastrojejunostomy status post gastric bypass for morbid obesity. (AR 263, 278-283.) Tests showed that because of an anastomotic gastrojejunostomy that was narrow, she was not able to empty foods well. (AR 278, 289.) Plaintiff was released from the hospital three days later, on July ...


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