United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.
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).
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).
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).
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).
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
support the finding that Plaintiff's diverticulitis was
not severe, the ALJ found as follows (AR 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.
thus found that Plaintiff's diverticulitis appeared to be
resolved after various medical procedures performed in late
2014, or was otherwise managed by medication.
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
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 ...