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Banda v. Commissioner of Social Security Administration

United States District Court, D. Arizona

August 29, 2019

Kay Jean Banda, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.

         Plaintiff Kay Jean Banda seeks judicial review of the denial of her application for disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g).

         Plaintiff argues that: (1) the Administrative Law Judge (“ALJ”) erred in finding Plaintiff's gastrointestinal disorders were not severe; (2) the ALJ accorded inadequate weight to the opinions of Plaintiff's treating physicians; (3) the vocational expert's testimony was not supported by substantial evidence; and (4) the ALJ erred in discrediting Plaintiff's symptom testimony (Doc. 13 at 2).

         A person is considered “disabled” for the purpose of receiving social security benefits if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration's decision to deny benefits should be upheld unless it is based on legal error or is not supported by substantial evidence. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

         “Substantial evidence is more than a mere scintilla but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation omitted). “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). The Court must review the record as a whole and consider both the evidence that supports and the evidence that detracts from the ALJ's determination. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

         I. DISCUSSION

         A. IMPAIRMENT ANALYSIS

         Plaintiff first argues that the ALJ erred in finding her gastrointestinal disorder was not severe (Doc. 13 at 16-19). At step two of the sequential evaluation process, the ALJ considers the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(ii). This step is essentially “a de minimis screening device [used] to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted). “An impairment or combination of impairments can be found ‘not severe' only if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on an individual's ability to work.'” Id.

         To support the finding that Plaintiff's diverticulitis was not severe, the ALJ found as follows (AR[1] 20-21):

In terms of the claimant's diverticulitis, the records indicate that the claimant was diagnosed with acute diverticulitis, after reporting severe diarrhea and abdominal pain. However, the records stated that the claimant was prescribed a 10-day medication regime that improved her symptoms by 80%. Specifically, the treatment records reflect that while on medication, the claimant was able to tolerate solid foods, no longer had blood in her stool, and experienced minimal abdominal pain. This indicates to the undersigned that the claimant's diverticulitis is being managed medically and should be amendable to proper control by adherence to recommended medical management and medication compliance. Secondary to the claimant's diverticulitis, the records show that the claimant is status post laparoscopic sigmoid colectomy, left hemicolectomy, diverting ileostomy, and ileostomy reversal (Exhibits 13F/29 & 35, 19F/10). However, the records show that all of these procedures occurred in late 2014 and have not been performed on the claimant again since then. The records also indicate that the claimant handled the procedures well (Exhibit 13F/51). This indicates to the undersigned that the claimant's status post laparoscopic sigmoid colectomy, left hemicolectomy, diverting ileostomy, and ileostomy reversal are isolated incidences that have since resolved with no further issues.

         The ALJ thus found that Plaintiff's diverticulitis appeared to be resolved after various medical procedures performed in late 2014, or was otherwise managed by medication.

         To support the decision, the ALJ primarily relies on evidence that Plaintiff's symptoms were properly managed when she adhered to a recommended medication regimen (AR 20). The ALJ, however, failed to include any citation to the record to support this finding, and Defendant has entirely ignored Plaintiff's assertion that this conclusion is baseless in the Response Brief. Moreover, to the extent the ALJ found that Plaintiff handled her hospital treatments well, suggesting that her issues were resolved, the record indicates that she continued to suffer from recurrent nausea (AR 826, 828), vomiting (AR 826, 828), abdominal pain (AR 828), diarrhea (AR 824), and blood in her stool or rectal bleeding (AR 824, 828). It is also unclear to this Court, how tolerating a surgical procedure is any indication of its actual success in remedying the underlying problem. The Court thus finds that the evidence demonstrates Plaintiff's diverticulitis constituted more than a “slight abnormality, ” and will remand the issue for further proceedings.

         B. PLAINTIFF CREDIBILITY

         Plaintiff next argues the ALJ erred in rejecting Plaintiff's subjective complaints. In evaluating a claimant's testimony, the ALJ is required to engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must decide whether the claimant has presented objective medical evidence of an impairment reasonably expected to produce some degree of the symptoms alleged. Id. If the first test is met and there is no evidence of malingering, the ALJ can reject the testimony regarding the severity of the symptoms only by providing specific, clear, and convincing reasons for the rejection. Id. Here, the ALJ found Plaintiff's medical impairments could ...


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