Mannion v. Commissioner Social Security Administration
Opinion and Order. Signed on 11/21/2017 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 1:17-cv-00008-MA
COMMISSIONER SOCIAL SECURITY
P.O. Box 370578
Las Vegas, NV 89137
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
Special Assistant United States Attorney
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900 MIS 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
Plaintiff Daniel Mannion seeks judicial review of the final decision of the Commissioner of
Social Security denying his application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the decision of the Commissioner is
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffprotectively filed his DIB application on June 26, 2013, alleging disability beginning
September 30, 2006, due to hidradenitis suppurativa ("HS"), pilonidal disease, and hernia. Plaintiff
subsequently amended his alleged onset date to October I, 2009. Tr. Soc. Sec. Admin. R. ("Tr.")
29-30, ECF No. 9. Plaintiffs claims were denied initially and upon reconsideration. Plaintiff filed
a request for a hearing before an administrative law judge ("ALJ"). The ALJ held a hearing on June
I 0, 2015, at which Plaintiff appeared with his attorney and testified. A vocational expert, Lynn A.
Jones, also appeared at the hearing and testified. On July 17, 2015, the ALJ issued an unfavorable
decision. The Appeals Council denied Plaintiffs request for review, and therefore, the ALJ's
decisfon became the final decision of the Commissioner for purposes of review. 1
Plaintiff was born in 1964, and was 45 years old on the amended alleged onset of disability
date and 50 years old on the date of the hearing. Plaintiff has completed four years of college, and
has worked in the past as an internet systems operator and a small business owner. Tr. 48, 209.
Plaintiff previously was found not disabled in a decision dated September 30, 2009. Tr.
12. The ALJ determined that Plaintiff successfully rebutted the presumption of continuing nondisability under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), because he alleged an
impairment not previously considered (hernia) and his applicable age catego1y changed. Tr. 1213.
2 - OPINION AND ORDER
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for dete1mining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step
is potentially dispositive. The claimant bears the burden of proof at steps one through four. Nfolina
v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574
F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the
claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153,
1161 (9th Cir. 2012).
Plaintiff meets insured status requirements for a DIB application through December 31, 2018.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since his
amended alleged onset date.
At step two, the ALJ found Plaintiff has the following severe
impairments: hidradenitis suppurativa2 and a history of hernia. At step three, the ALJ found that
Plaintiffs impairments do not meet or medically equal a listed impairment.
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perfmm a range
oflight work but with the following limitations:
he is further limited to tasks involving no more than frequent balancing, and no more
than occasional kneeling, crawling, crouching, stooping, or climbing.
Hidradenitis suppurativa ("HS") is a rare, long-term skin condition that features small,
painful lumps under the skin. They typically develop where the skin rubs together, such as the
aimpits, the groin, between the buttocks, and under the breasts. The lumps may break open and
smell or cause tunnels under the skin. HS can persist for many years and worsen over time, with
serious effects on daily life and emotional well-being. http://www.mayoclinic.org/diseasesconditions/hidradenitis-suppurativa/symptoms-causes/syc-20352306 (last accessed Nov. 16,
3 - OPINION AND ORDER
Tr. 15. At step four, the ALJ found that Plaintiff is able to perfom1 his past relevant work as an
internet systems operator and small business owner. Accordingly, the ALJ concluded that Plaintiff
has not been under a disability under the Social Security Act at any time from October I, 2009
through the date of the decision.
ISSUES ON REVIEW
On appeal to this Comi, Plaintiff contends the following eJTors were committed: (1) the ALJ
erred at step three in failing to find his HS meets or equals Listing 8.06; (2) the ALJ improperly
evaluated his testimony; and (3) the ALJ failed to include all credible evidence in the hypothetical
question to the vocational expe1i. The Commissioner argues that even ifthe ALJ erred, Plaintiffhas
not demonstrated harmful enor.
STANDARD OF REVIEW
The district court must affom the Commissioner's decision ifthe Commissioner applied the
proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). "'Substantial evidence is
more than a mere scintilla but, less than a preponderance. It means such relevant evidence as a
reasonable mind might accept as adequate to suppmi a conclusion.'" Trevizo v. Berryhill, 871 F.3d
664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec'y Health & Human Servs., 846 F.2d 573, 576
(9th Cir. 1988)). The court must weigh all the evidence, whether it supports or detracts from the
iV!artinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The
Commissioner's decision must be upheld, even if the evidence is susceptible to more than one
rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be
4 - OPINION AND ORDER
affinned; "the court may not substitute its judgment for that of the Commissioner." Edlund v.
}vfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir.
The ALJ Diel Not Err at Step Three
Step Three Standards
The claimant has the burden of proving that an impairment meets or equals a Listing.
Sullivan v. Zebley, 493 U.S. 521, 530-33 (1990). The "Listing oflmpaim1ents" generally describes
impairments that are so severe as to be considered presumptively disabling, without fmiher
consideration of a claimant's residual functional capacity, past relevant work, or other jobs. 20
C.F.R. § 404.1520(d); Staggs v. Colvin, Case No. 6: l 5-cv-01060-MC, 2016 WL 4942002, at *4 (D.
Or. Sept. 14, 2016). A diagnosis of a listed impairment is not sufficient. 20 C.F.R. § 404.1525(d);
Youngv. Sullivan, 911F.2d180, 184 (9th Cir. 1990); Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.
2005). To "meet" a listed impairment, a disability claimant must establish that his condition satisfies
the severity of each element of the listed impairment in question, as well as the duration requirement
for that particular listing. Kennedyv. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013); Zebley, 493 U.S.
at 530 (holding that a claimant "must meet all of the specified medical criteria"). To "equal" a listed
impairment, a claimant "must establish symptoms, signs, and laboratory findings" at least equal in
severity and duration to each element of the most similar listed impahment. Tackett v. Apfel, 180
F.3d 1094, 1099-1100 (9th Cir. 1999) (quoting 20 C.F.R. § 404.1526); Kennedy, 738 F.3d at 1176.
5 - OPINION AND ORDER
At step three, the ALJ made the following findings:
The undersigned has given particular consideration to section 8.06 (hidradenitis
suppurativa). [Plaintiffs] skin condition, while severe, does not meet or medically
equal the criteria set forth in this listing.
Plaintiff contends the ALJ's limited discussion ofListing 8.06 at step three failed to mticulate
a "proper rationale" for finding he did not meet or equal the listing. Plaintiff argues that the medical
evidence establishes that he has extensive skin lesions bilaterally on his groin, thighs, axillae, and
perineum that have persisted despite treatment and therefore he meets Listing 8.06. Additionally,
Plaintiff argues that his HS flare-ups are frequent and that his combined impairments are severe
enough to equal the Listing 8.06. Although Plaintiff is conect that the ALJ's analysis at step three
is perfunctory, Plaintiffs m·guments ultimately fail for several reasons.
First, an ALJ "must evaluate the relevant evidence before concluding that a claimant's
impaitments do not meet or equal a listed impairment." Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.
2001 ). However, an ALJ is not required to provide that analysis under a particular heading; rather,
the ALJ's decision may be viewed as a whole. Id; Kennedy, 738 F.3d at 1178; Conley v. Berryhill,
Case No. 1:16-cv-944-GSA,2017 WL 4310249, *8 (E.D. Cal. Sept. 28, 2017) (holdingALJ's error
in failing to provide detailed examination of Listing 8.05 at step three was harmless because later
evaluation of medical evidence was suppo1ted by substantial evidence).
In the decision, the ALJ sufficiently discussed and evaluated the medical evidence before
concluding that Plaintiff does not meet Listing 8.06. Listing 8.06 requires evidence of "extensive
skin lesions involving both axillae, both inguinal areas or the perineum that persist for at least 3
months despite continuing treatment as prescribed." 20 C.F.R. § 404, Subpart P, App. 1 § 8.06. For
6 - OPINION AND ORDER
purposes of Listing 8.06, Listing 8.00(C)(l) defines "extensive skin lesions" as "those that involve
multiple body sites or critical body areas, and result in very serious limitation." 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 8.00(C). The Listing further explains that extensive skin lesions resulting in
"serious limitation" include those that "interfere with the motion ofjoints or use of extremities," and
"lesions on ... the perineum, or both inguinal areas that very seriously limit" one's ability to
ambulate. Id. at§ 8.00(C)(l); see Conley, 2017 WL 4310249 at *6-7 (discussing the requirements
of Listing 8.00 for skin disorders, including the severity of skin lesions); Siapno v. Astrue, Case No.
C 10-00127-SI, 2010 WL 5399218, *5 (N.D. Cal. Dec. 23, 2010) (same).
The ALJ thoroughly discussed the medical evidence from several providers when evaluating
Plaintiffs RFC. For example, the ALJ discussed medical records from a de1matologist in early 2012
showing that Plaintiff ambulated with a normal gait and had no musculoskeletal problems, and that
he appeared ale1i and comf01iable. Tr. 17, 323-24. The ALJ discussed evidence from William
Hughes, D.O., who conducted a consultative examination in May 2012 who observed HS in the
parascrotal region in various stages of healing. Tr. 17, 389. As the ALJ c01Tectly indicated, Dr.
Hughes found on examination that Plaintiff had a n01mal gait, with no difficulty walking, sitting or
standing, and had full strength and range of motion in all extremities. Tr. 17, 389. The ALJ
discussed medical records from David Oehling, M.D., a physician who advised Plaintiff regarding
potential surgical repair of his inguinal hernia in November 2013. Tr. 17, 262. As the ALJ
discussed, Dr. Oehling noted that Plaintiffs inguinal hernia was complicated by his HS, but surgical
hernia repair proved unnecessary because his hernia was reducible with antibiotic treatment, and
Plaintiffs symptoms improved in two weeks. Tr. 17, 264. The ALJ conectly observed, no treating
provider has opined that Plaintiff is unable to sustain employment. As the ALJ's evaluation makes
7 - OPINION AND ORDER
clear, Plaintiffs medical records fail to demonstrate that his HS causes serious limitation in his
joints, extremities, or ability to ambulate. The ALJ's evaluation of the medical evidence is wholly
supported by substantial evidence and is unchallenged by Plaintiff. This explanation alone satisfies
the ALJ's conclusion that Plaintiffs HS does not meet Listing 8.06.
Second, even assuming arguendo thatALJ erred in failing to provide a detailed analysis at
step three, the enor is harmless. 1'1folina, 674 F.3d at 1115. As the Commissioner conectly
highlights, Plaintiff identifies no medical evidence that shows he has experienced persistent lesions
for any three month period of time in order to satisfy the durational requirement. Listing 8. OO(H)
explains: "if you do not have continuing treatment as prescribed, if your treatment has not lasted for
at least 3 months, or if you do not have extensive skin lesions that have persisted for at least 3
months, your impairment cannot meet the requirements of these skin disorder listings." 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 8:00(H)(l); see Peabodyv. Colvin, Case No. 1:14-cv-1433-SMS, 2016
WL 538377, *5 (E.D. Cal. Feb. 11, 2016) (discussing requirements for hidradenitis suppurativa in
Listing 8.06). Indeed, the Court's review of the medical evidence does not reveal any treatment or
lesions that have lasted for three months. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 8.00(G) (noting
that the "longitudinal medical record" must show that your lesions have been at listing level for at
least three months despite treatment). Plaintiff testified that he experiences outbreaks with severe
pain rendering him bedridden for three to five days every six to eight weeks. However, lesions
lasting three to five days simply do not satisfy the three-month listing criteria. See Peabody, 2016
WL 538377 at *6 (finding lesions lasting for 10 days did not meet Listing 8.06). Moreover, as the
ALJ discussed, Plaintiffs contention that he experiences such severe outbreaks every six to eight
we.eks is simply not supported by the medical record. As the ALJ discussed, Plaintiffs use of oral
8 - OPINION AND ORDER
antibiotics and antibacterial wipes have been effective in controlling his HS flare-ups, and his
treatment has been intermittent. Tr. 17-18, 67. Fmihennore, as will be discussed below, the ALJ
found Plaintiffs testimony about the severity of his symptoms less than fully credible.
Plaintiff argues that the ALJ did not specifically discuss the duration requirement when
finding that his HS does not meet Listing 8.06, and that the Commissioner's contention amounts to
a post hoc rationalization. The Court disagrees. Absent identification of some medical evidence by
Plaintiff that he satisfies all the listing criteria - including the durational requirement - the ALJ' s
failure to discuss it is hmmless e1rnr at best. 1Vfolina, 674 F.3d at 1115 (holding the comi may not
reverse for errors that are inconsequential to the ultimate nondisability dete1mination); }vfarsh v.
Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (reviewing comtmay not reverse for harmless errors
unless the court can "confidently conclude that no reasonable ALJ ... could have reached a different
disability determination). Here, the ALJ found other medical evidence of the listing criteria lacking,
and the ALJ's failure to provide additional detail as to why Plaintiff does not meet Listing 8.06
would be superfluous. Thus, any alleged e!Tor at step three is harmless.
Third, Plaintiffs contention that his impairments equal Listing 8 .06 is without merit. As the
Ninth Circuit has recognized, "[a]n ALJ is not required to discuss the combined effects of a
claimant's impairments or compare them to any listing in an equivalency determination, unless the
claimant presents evidence in an effort to establish equivalence." Burch, 400 F.3d at 683. At the
hearing, Plaintiff did not advance any argument as to how his HS, pilonidal disease, and hernia
combine to equal Listing 8.06. Tr. 29, 50. Given that Plaintiff did not advance such an argument
to the ALJ, the ALJ did not el1' in failing to consider it. Kennedy, 738 F.3d at 1178 (rejecting
contention that ALJ e1Ted in failing to consider equivalency argument when equivalency not
9 - OPINION AND ORDER
presented to ALJ); Alleyne v. Colvin, Case No. ED CV 14-1434-E, 2015 WL 1401875, *4 (C.D. Cal.
Mar. 26, 2015) (rejecting claimant's argument that ALJ failed to provide a "proper explanation" for
failing to meet or equal listing).
Finally, to the extent that Plaintiff argues that his HS flare-ups alone are equivalent to Listing
8.06, this contention similarly fails. Listing 8.00(C)(2) states that if a claimant has frequent flareups, his impairment may be medically equal to a listing even though he has some periods during
which the condition is in remission. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 8.00(C)(2). To establish
equivalence, an ALJ may consider the frequency and seriousness of flare-ups, how quickly they
resolve, and how a claimant functions between flare-ups to determine whether he has "been unable
to do any gainful activity for a continuous period of at least 12 months or can be expected to be
unable to do any gainful activity for a continuous period of at least 12 months." Id; see also Saipno,
2010 WL 5399218 at *5 (rejecting claimant's argument that frequent psoriasis flare-ups medically
equalled Listing 8.05 because he did not identify record evidence establishing inability to perfonn
work for 12 continuous months). In his briefing, Plaintiff fails to identify any medical evidence
demonstrating how he satisfies this requirement. Plaintiff relies upon his own testimony that he
experiences flare-ups every six to eight weeks, but as discussed below, the ALJ appropriately
discounted his credibility. The ALJ's interpretation of the record is reasonable, and will not be
disturbed. See lvlolina, 674 F.3d at 1111 (noting reasonable interpretations must be upheld); Gaston
v. Comm 'r Soc. Sec. Admin., 577 F. App'x 739, 741 (9th Cir. 2014) (concluding ALJ did not e11' in
failing to give extensive analysis on equivalence where medical evidence was lacking).
For all these reasons, the ALJ's conclusion that Plaintiff does not meet or equal Listing 8.06
is supported by substantial evidence, and free of harmful legal eirnr.
10- OPINION AND ORDER
The ALJ Did Not Err in Assessing Plaintiffs Credibility
To dete1mine whether a claimant's testimony regarding subjective pain or symptoms is
credible, an ALJ must perfmm two stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first
stage is a threshold test in which the claimant must produce objective medical evidence of an
underlying impairment that could reasonably be expected to produce the symptoms alleged. 2'1/olina,
674 F.3d at 1112; Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage
of the credibility analysis, absent affomative evidence of malingering, the ALJ must provide specific,
clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the
symptoms. Burrellv. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Carmickle v. Commissioner Soc.
Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when
making such credibility dete1minations include the objective medical evidence, the claimant's
treatment histmy, the claimant's daily activities, inconsistencies in testimony, and effectiveness or
11 - OPINION AND ORDER
adverse side effects of any pain medication. 3 Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at
At the hearing, Plaintiff testified that it is primarily his pain from HS that prevents him from
working. Tr. 31. Plaintiff stated that his HS causes abscesses that can grow to be almost baseball
sized, and occur in his aimpits, groin, and buttocks. Tr. 32. Plaintiff testified that he is currently
working 10 hours a week at the sp01iswear company he owns with his wife. Tr. 32. Plaintiff stated
that most of his work is conducted online, and that he buys and sells alphabet letters for athletic
jerseys. Tr. 33.
Plaintiff testified that he has developed a hernia, and that in the previous few months his
condition has improved. Tr. 34. Plaintiff testified that for three to five days every six weeks or so
he is bedridden due to swelling from HS. Tr. 36-37. Plaintiff stated that he changes positions from
lying down, to sitting, then lying down again. Tr. 37. When his HS is not bothering him, he can
perform typical chores such as mowing the lawn and working. Tr. 37. Plaintiff testified that his HS
is chronic and resistant to treatments and antibiotics. Tr. 39. Plaintiff testified that depending upon
his HS, he can work at a computer for up to six hours, but if his HS is flaring, not at all. Tr. 40.
Plaintiff estimated he could work up to six hours a day on a computer ten times a month. Tr. 40.
The Court observes that on Mai·ch 28, 2016, Social Security Ruling ("SSR") 16-3p
became effective, and it eliminated the use of the te1m "credibility." The ALJ's decision in this
case was issued July 17, 2015. The Comi has previously dete1mined that SSR 16-3p does not
apply retroactively because 42 U.S.C. § 405(g) does not contain any express authorization from
Congress allowing the Commissioner to engage in retroactive rulemaking. Smith v. Colvin, No.
6:15-cv-01625-MA, 2017 WL 388814, at *4 n.2 (D. Or. Jan. 27, 2017). See, e.g., Wright v.
Colvin, No. 15-cv-02495-BLF, 2017 WL 697542, *9 (N.D. Cal. Feb. 22, 2017) (holding SSR 163p does not apply retroactively); Thayer v. Colvin, No. 2: 16-cv-00545-DWC, 2017 WL 132450,
at *7 (W.D. Wash. Jan. 13, 2017) (same). The Comi adheres to that rationale here.
12 - OPINION AND ORDER
Plaintiff testified that he takes ibuprofen for pain and swelling, and uses medicated baths and
topical creams for treatment of his HS. Tr. 43. Plaintiff testified that he must wear loose-fitting
clothing and that his wife does the shopping. Tr. 44. Plaintiff stated that he is unable to work at
even a sedentary job due to his pain and inability to walk, and that his pain prevents him from
concentrating. Tr. 45. Plaintiff fmiher testified that he takes oxycodone or hydrocodone for pain.
In a September 17, 2013 Function Repo1i - Adult, Plaintiff indicated stated that he is unable
to get out of bed sometimes, and frequently is unable to walk, stand, or sit, and is unable to move
quickly. Tr. 227. Plaintiff stated that he is only pain free ten percent of the time. Tr. 227. Plaintiff
provided that in 2009, his HS has spread to his aimpit, has limited his range of motion, and that the
cycle of cysts draining, drying, and ripping prohibits him from working most of the time. Tr. 227.
Plaintiff stated that in a typical day, he will wake and shower, needs help getting dressed
from his wife, then if feeling up to it, will assist with taking care of his children. Tr. 228. Plaintiff
stated that he cannot use his aim and needs help dressing and washing his hair. Tr. 229. Plaintiff
stated that when he is bedridden, he is unable to perfmm any self-care. Tr. 229. Plaintiff stated he
is able to prepare simple meals without assistance. Tr. 229. Plaintiff provided that ten percent of
the time, he is able to do most chores slowly, and 50 percent of the time, can do chores one-handed,
such as vacuuming, and can sit on the riding lawmnower two times a month. Tr. 230.
Plaintiff stated that he goes outside multiple times a day when he can, can drive short
distances weekly, and use an AFTV to get around on his property. Plaintiff stated he drives with his
left hand because his right aim bothers him. Tr. 230. Plaintiff stated he is able to shop online and
in stores for groceries and household goods. Tr. 230.
13 - OPINION AND ORDER
Plaintiff stated that his HS affects his ability to lift, squat, bend, stand, reach, walk, sit, kneel,
climb stairs, complete tasks, concentrate, understand, follow directions, use his hands, and get along
with others. Tr. 232. Plaintiff estimated that he can walk 100 feet, can pay attention for 30 minutes,
can follow written instructions, can follow short spoken instructions, gets along well with authority
figures, and is unable to handle the stress caused by his pain. Tr. 233. Plaintiff further stated that
oxycodone and hydrocodone have negative side effects, including nausea, fear, drowsiness, and
dizziness. Tr. 233.
In a Disability Report - Appeal, dated Janumy 21, 2014, Plaintiff indicated his hernia
worsened with more swelling, pain and much larger bulge that presses on his iguinal HS and causes
pain. Tr. 235. Plaintiff stated that his HS worsened and spread, with constantly open wounds in his
left groin and right underarm. Tr. 235. Plaintiff described that he is in constant pain and his
movement is restricted. Tr. 235. Plaintiff stated that he takes oxycodone and hydrocodone for
intolerable pain, and that he is using leftover medications from earlier prescriptions. Tr. 238.
Plaintiff testified that he uses tramadol for moderate pain, and ibuprofen for swelling and mild pain,
and that he uses lidocaine, benzocaine, and prilocaine topically. Tr. 238. Plaintiff further stated that
the oxycodone and hydrocone make him nauseous, the tramadol makes him dizzy, and the lidocaine
makes him less ambulatory. Tr. 238.
In the decision, the ALJ found that Plaintiffs statements concerning the intensity, persistence
and limiting effects of his symptoms are not entirely credible, providing multiple reasons. First, the
ALJ found that Plaintiffs skin condition is long-standing, and that there was no indication of a
sudden worsening of symptoms in 2009. An ALJ may discount a claimant's testimony if there is
substantial evidence to support the conclusion that the claimant was capable of working with the
14- OPINION AND ORDER
same impaiiment prior to filing to benefits. See Delaplain v. Comm 'r Soc. Sec. Admin., Case No.
2:15-cv-02439-HZ, 2017WL1234133, *8 (D. Or. Mar. 17, 2017)(determiningALJ appropriately
discounted claimant's testimony where claimant had long-standing back problems, but was able to
sustain work for many years); Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1998) (noting that
"substantial evidence" indicated that claimant's condition "had remained constant for a number of
years and that her back problems had not prevented her from working over that time."); see also
Wikojfv. Astrue, 388 F. App'x 735, 737 (9th Cir. 2010) (upholding ALJ's conclusion that claimant
was able to pe1f01m substantial gainful activities while suffering mental impaitments as severe as
those she suffered later, after her alleged onset date).
Here, the ALJ discussed that Plaintiff told a dermatologist in 2015 that he had been
diagnosed with HS in 1982, and had undergone multiple treatments. Tr. 17, 308. As the ALJ
observed, Plaintiffs alleged recut1'ent abscesses did not prevent him from engaging in substantial
gainful activity for many years prior to Plaintiffs amended alleged onset date of October 1, 2009.
Tr. 17, 189. Moreover, as the ALJ co1Tectly observed, there is no medical evidence suggesting that
Plaintiffs condition suddenly declined in September 2009. Tr. 17.
Plaintiff contends that the ALJ erred because the record demonstrates that he had active HS
lesions in his groin in 2009, as well as scars from prior lesions. Tr. 311-12. Contrary to Plaintiffs
suggestion, the evidence he cites does not show active HS lesions in 2009. Tr. 312. Plaintiff cites
a consultative examination performed by David Wiegman dated April 18, 2009. Dr. Wiegman's
treatment notes indicate that Plaintiff informed him of a long histmy of HS and pilonidal cysts dating
back to his teenage years. Tr. 311. Additionally, while Dr. Wiegman indicated that Plaintiff had
scat1'ing consistent with HS, Dr. Wiegman further observed that "he does not have any active boils
15 - OPINION AND ORDER
or cysts today." Tr. 313. Thus, the Comi concludes that ALJ's findings are fully supported by
substantial evidence and provides an appropriate basis for discounting Plaintiffs credibility.
Plaintiff also suggests that the ALJ ened in requiring him to demonstrate a worsening in 2009
following a prior Social Security denial in 2009. Plaintiffs argument misses the mark. The ALJ did
not require that Plaintiff demonstrate his condition worsened as compared to the 2009 disability
denial. Rather, the ALJ could reasonably conclude that he had worked at SGA levels with his HS
condition for multiple years prior to his alleged onset date of October 2009. It is reasonable for the
ALJ to conclude that absent some evidence that his condition has declined, his condition would not
prevent him from continuing to perform work at SGA levels .. Batson, 359 F.3d at 1193 (reasonable
interpretations of the evidence must be upheld). Furthermore, even assuming arguendo the ALJ
ened in relying on this patiicular rationale, as discussed below, the ALJ has provided multiple other
reasons, backed by ample record support, that provide clear and convincing reasons for discounting
Plaintiffs credibility. Bray v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)(even
if ALJ ened in discrediting claimant's testimony, if remaining reasons still amount to clear and
convincing evidence, crediblity determination must be upheld).
Second, the ALJ discounted Plaintiffs credibility based on significant inconsistencies with
the medical record. Inconsistencies between a claimant's allegations and the medical record is a
pe1missible reason to discount a claimant's testimony. Batson, 359 F.3d at 1197; Tommaseffi, 533
F.3d at 1039 (ALJ may consider prior inconsistent statements concerning symptoms and other
testimony when evaluating credibility); see also Perez v. Astrue, 247 F. App'x 931, 934 (9th Cir.
2007) (holding ALJ appropriately discounted claimant's testimony where claims of severe
medication side effects were not supp01ied by medical record). For example, the ALJ found
16 - OPINION AND ORDER
Plaintiffs alleged adverse medication side effects in Plaintiffs application materials are unsuppo1ted
by the medical record. The ALJ's findings are fully supp01ted in the record as whole. As the ALJ
discussed, Plaintiff complained of numerous side effects from pain medication, including extreme
nausea, drowsiness, and dizziness. Tr. 17, 23 3. Yet, as the ALJ accurately indicated, Plaintiffs
alleged side effects are not conoborated by any medical provider. Tr. 17. Plaintiff does not identify
a single instance of reporting these alleged side effects to a treatment provider, and the Court's
careful review of the record likewise fails to reveal any such repo1t. Accordingly, the Couit
concludes the ALJ's interpretation of the record is reasonable and will not be disturbed. 1vfolina, 674
F.3d at 1111.
Additionally, the ALJ detailed that contrmy to Plaintiffs allegation of being "bedridden" by
his symptoms, such extreme limitations are not documented in his medical records. For example,
contrary to Plaintiffs contention that he is unable to stand or walk, the ALJ cited treatment notes in
early 2012 showing that Plaintiff was awake, alert, appropriate, fully oriented, and in no acute
distress. Tr. 286-88 (repeated at Tr. 361-67). Additionally, the ALJ discussed multiple repo1ts of
Plaintiff having a normal gait, with no apparent musculoskeletal problems, and being "ale1t" and
"comfortable" upon examination. Tr. 291-92, 294, 298 (repeated at Tr. 323, 333, 377). The ALJ's
findings are wholly supported by substantial evidence. Therefore, the Comt concludes the ALJ
reasonably discounted Plaintiffs credibility based on the significant inconsistencies between the
severity of Plaintiffs allegations and the lack of support in the medical record.
Third, the ALJ found the relatively benign clinical findings unde1mined Plaintiffs allegations
of disabling levels of pain. Contradiction with the medical record is a valid credibility consideration.
Carmickle, 533F.3datl161;Burch, 400 F.3dat 680-81 ("Although lack of medical evidence cannot
17 - OPINION AND ORDER
fonn the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his
credibility analysis."). Here, the ALJ discussed that in May 2012, William Hughes, D. 0., conducted
a consultative examination, and observed HS in various stages of healing. Tr. 17, 387. Dr. Hughes
observed HS in the right axillae and right periscrotal region, with inflammation on the left periscrotal
region. Tr. 387. Dr. Hughes also observed remnants of a pilonidal cyst in the sacral area. Tr. 387.
As the ALJ indicated, Dr. Hughes assessed Plaintiff with cluonic HS "in various stages of healing,"
but he demonstrated a normal gait, with no effect on his ability to sit, stand, or walk, with no deficits
in motor strength or range of motion. Tr. 17, 389-91. The ALJ could reasonably interpret Dr.
Hughes' examination results as failing to support a disabling pain condition. Tr. 17.
The ALJ also discussed November treatment records from David Oehling, M.D., who was
consulted for possible surgical repair of Plaintiffs inguinal hemia that was complicated by an HS
flare-up in Plaintiffs suprapubic area. Tr. 17, 262. Dr. Oehling's November 7, 2013 treatment
records reveal that he recommended a two-week course of antibiotics with twice daily medicated
showers. Tr. 262. As the ALJ conectly indicated, two weeks later on November 21, 2013, Dr.
Oehling noted improvement with Plaintiffs HS and hemia. Tr. 264. Dr. Oehling indicated there
were no "ove1i abscesses" in his inguinal area or upper thigh, the areas were much less inflamed
following his recommended HS treatment, and the hernia was reducible, thus he did not recommend
surgical hernia repair. Tr. 264. As the ALJ conectly discussed, Plaintiff acknowledged at the
hearing that his hemia symptoms had improved. Tr. 17. Therefore, based on the lack of significant
clinical findings, the ALJ could conclude that Plaintiffs subjective pain complaints were not
supported by the record, and reasonably discounted his credibility on this basis. Indeed, as the ALJ
accurately noted, no physician has opined that Plaintiff is unable to sustain regular employment. See,
18 - OPINION AND ORDER
e.g., Tr. 315-20, 308. The ALJ's findings are wholly supported by substantial evidence, are a
rational interpretation of the evidence, and will not be disturbed. l'vfolina, 674 F.3d at 1111. When
the ALJ' s second and third rationales are combined, they provide specific, clear and convincing
support for the ALJ' s adverse credibility detennination.
Fomih, the ALJ discounted Plaintiffs testimony regarding his symptoms was inconsistent
with his reported activities of daily living. Daily activities may serve as a basis for discrediting a
claimant where they are inconsistent with the claimant's alleged symptoms. }.1olina, 674 F.3d at
1112. The ALJ may properly discredit a claimant's testimony where the claimant repo11s
paiiicipation in daily activities that are transferrable to a work setting, or those activities contradict
a claim of a totally disabling impaitment. Id at 1113. Here, the ALJ detailed several activities,
including Plaintiffs ability to drive, operate a riding lawn mower, use the computer frequently, and
work 10 hours a week at his family business as indicating he retains significant work-related
functioning. Tr. 17. As the ALJ indicated, Plaintiffs activities are inconsistent with his allegations
that he is bedridden or restricted to a sub-sedentary lifestyle by his symptoms. For example, the ALJ
detailed Plaintiffs ability to venture outside multiple times a day, drive when necessaiy, and go
shopping online or in stores. The ALJ' s findings are wholly supported by substantial evidence in
the record, and the ALJ could reasonably conclude that Plaintiffs allegations are inconsistent with
his allegations of total disability, and that he engages in activities that are transferrable to work
Fifth, the ALJ discredited Plaintiffs treatment has largely been conservative in nature, and
thus is not disruptive to a no1mal workday or workweek. Tr. 18. Evidence of a claimant's favorable
response to minimal and conservative treatment can U11dermine credibility. Tommasetti, 533 F.3d
19- OPINION AND ORDER
at 1039-40. Here, the ALJ detailed that June 3, 2015 medical records from Richard Schultz, M.D.,
indicated that his recommended course of treatment included oral antibiotics for inflammation and
antibacterial wipes. Tr. 18, 305. As the ALJ correctly indicated, Dr. Schultz observed that Plaintiff
was in no acute distress, was ale1i and oriented. The ALJ' s findings are backed by substantial
evidence, are a reasonable interpretation of the evidence, and will not be disturbed. Id. at 1040
(noting conservative treatment including anti-inflammatory medication and physical therapy
undermined allegations of disabling pain); accord Parrav. As/rue, 481F.3d742, 751 (9th Cir. 2007)
(holding that evidence of conservative treatment may be "sufficient to discount a claimant's
testimony regarding severity of an impaiiment"). The ALJ's fourth and fifth reasons fmiher bolster
the ALJ' s adverse credibility dete1mination.
Finally, the overall record contradicts Plaintiffs argument that the ALJ erroneously focused
on a few symptom-free periods to discount Plaintiffs credibility. Garrison, 759 F.3d at 1009.
(dete1mining that court may not affirm nondisability determination by "isolating a specific quantum
of suppmiing evidence"). Indeed, the medical record here demonstrates quite the opposite: Plaintiff
has long symptom-free periods, punctuated with occasional, brief flare-ups of HS symptoms. For
example, in the medical record before the Comi, there is no indication that Plaintiff sought treatment
for his HS from April 2009 to Januaiy 2012 (Tr. 311-15, 298), from May 2012 to November 2013
(Tr. 387-89, 271-73), and again from November 2013 to June 2015 (Tr. 264, 275, 308).
Significantly, the record also reveals that when Plaintiff is experiencing an HS flare-up, he has
responded within weeks to antibiotic treatment. Tr. 264, 292-93, 298. Therefore, contrary to
Plaintiffs assertion, the ALJ did not isolate a few instances of improvement.
20 - OPINION AND ORDER
In summmy, the Court concludes that the ALJ has provided numerous specific, clear and
convincing reasons backed by substantial evidence in the record as whole for discounting Plaintiffs
credibility. The ALJ did not en.
The ALJ's Hypothetical to the VE Contained all Properly Credited Evidence
Plaintiff argues that the ALJ elicted testimony from the vocational expert ("VE") that did not
include all of the limitations described in his subjective statements, pmticularly his statement that
he is bedridden three to five days eve1y six week period. According to Plaintiff, when this limitation
is included, it is clear he is unable to sustain work, and the ALJ ened in relying on the VE's
testimony to find that he can perform his past relevant work.
As discussed above, the Cou1t has not identified any harmful errors in the ALJ' s evaluation
of the evidence, including discounting Plaintiffs testimony. The hypothetical posed to the VE
included all of Plaintiffs limitations credited by the ALJ and supp01ted by substantial evidence in
the record. Britton v. Colvin, 787 F.3d 1011, 1013-14 (9th Cir. 2015); Bayliss v. Barnhart, 427 F.3d
1211, 1217 (9th Cir. 2005). Accordingly, the ALJ could rely upon the VE's testimony. The ALJ
did not err at steps four and five.
21 - OPINION AND ORDER
For the reasons set forth above, the Commissioner's final decision denying benefits to
Plaintiff is AFFIRMED.
IT IS SO ORDERED.
DATED this ;?. t day ofNOVEMBER, 2017.
Malcolm F. Marsh
United States District Judge
22 - OPINION AND ORDER
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