Vazquez v. Commissioner of Social Security Administration

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ONIKA VAZQUEZ,

Plaintiff,

v. CASE NO. 8:19-cv-1039-T-MCR

COMMISSIONER OF THE SOCIAL

SECURITY ADMINISTRATION,

Defendant.

______________________________/

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative

decision regarding her applications for a period of disability, disability insurance

benefits (“DIB”), and supplemental security income (“SSI”). Following an

administrative hearing held on August 16, 2017, the assigned Administrative Law

Judge (“ALJ”) issued a decision, finding Plaintiff not disabled from November 15,

2014, the alleged disability onset date, through December 6, 2017, the date of

the ALJ’s decision.2 (Tr. 9-23, 110-41, 331, 335.)

In reaching the decision, the ALJ found that Plaintiff had the following

severe impairments: obesity, affective disorder, anxiety disorder, and hidradenitis

1 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. (Doc. 25.)

2 Plaintiff had to establish disability on or before December 31, 2019, her date

last insured, in order to be entitled to a period of disability and DIB. (Tr. 13.)

suppurativa.3 (Tr. 15.) The ALJ further found that Plaintiff had the residual

functional capacity (“RFC”) to perform a reduced range of sedentary work. (Tr.

17.) Then, after determining that Plaintiff was unable to perform any past

relevant work, at the fifth and final step of the sequential evaluation process,4 the

ALJ found that there were jobs existing in significant numbers in the national

economy that Plaintiff could perform. (Tr. 22-23.)

Plaintiff is appealing the Commissioner’s decision that she was not

disabled from November 15, 2014 to December 6, 2017. Plaintiff has exhausted

her available administrative remedies and the case is properly before the Court.

Based on a review of the record, the briefs, and the applicable law, the

Commissioner’s decision is AFFIRMED.

3 Hidradenitis suppurativa “is a skin disease that causes pimple-like bumps or

boils on and under the skin”; it “starts in the hair follicle in the skin and happens where

areas of skin may touch or rub together”; its exact cause is unknown; it is “chronic (long

lasting) and can be painful.” (Doc. 28-1 at 1.) Persons more likely to get this disease

are, inter alia, those who are overweight, those who have a family member with the

disease, and those who smoke. (Id.) The symptoms of the disease are pus-filled

bumps on the skin, hard bumps under the skin, and open wounds that drain and would

not heal. (Id. at 2.) The bumps can be large and painful, they are most common in the

armpits and groin, and they can cause deep and serious scars. (Id.) Moderate or

severe hidradenitis suppurativa may be treated with a TNF inhibitor, which is a

medication known as a biologic. (Id.) Other medications to treat the symptoms include:

antibiotics, corticosteroids, hormone therapy, immunosuppressants, pain relievers, and

retinoids. (Id. at 2-3.) Surgery may be needed to open or drain the bumps or boils. (Id.

at 3.) Laser hair removal may also be recommended. (Id.)

4 The Commissioner employs a five-step process in determining disability. See

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

I. Standard of Review

The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841

F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are

supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390

(1971). “Substantial evidence is more than a scintilla and is such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.

2004). Where the Commissioner’s decision is supported by substantial

evidence, the district court will affirm, even if the reviewer would have reached a

contrary result as finder of fact, and even if the reviewer finds that the evidence

preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937

F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th

Cir. 1991). The district court must view the evidence as a whole, taking into

account evidence favorable as well as unfavorable to the decision. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d

835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to

determine the reasonableness of the Commissioner=s factual findings).

II. Discussion

A. The Parties’ Positions

Plaintiff argues that the ALJ erred “in making medically unsupported and

erroneous assumptions regarding the cause of the Plaintiff’s symptoms as a

result of her hidradenitis suppurativa condition.” (Doc. 28 at 2.) Plaintiff

contends that the ALJ mischaracterized the evidence as to her skin condition,

specifically, as to shaving being the cause of the condition, and improperly

discounted Plaintiff’s testimony as to any functional limitations stemming from the

condition. Plaintiff states that because her skin condition was not caused by

shaving and she was never advised to stop shaving, the ALJ’s assumption that

Plaintiff failed to follow prescribed treatment by continuing to shave was

erroneous. Plaintiff also contends that the ALJ’s RFC assessment failed to take

into account her difficulty sitting for prolonged periods of time and her difficulty

reaching frequently due to discomfort in the groin and axillae areas during flare-

ups.

Defendant responds, in relevant part, as follows:

Plaintiff attempts to use her diagnosis of an unusual skin condition,

hidradenitis suppurativa, to support extreme limitations that are

completely unfounded by the medical evidence. The medical

evidence simply does not support Plaintiff’s allegations that her skin

condition caused bumps as large [as] golf balls or grapefruit or that

her flare-ups were so painful that she could not move and had to

stay in bed without clothing. Instead, the medical evidence shows

that even when Plaintiff experienced skin flare-ups in her armpits

and groin, the bumps were small and treatable with antibiotics; her

pain level was zero; she was well-appearing and in no acute

distress; she remained sexually active, even with active lesions near

her groin; motor strength was normal; and gait and stance were

normal. Plaintiff has not demonstrated that her skin outbreaks

caused any work-related limitations, and her brief attempts to detract

from the lack of evidence supporting her allegations by attacking the

ALJ’s non-essential conclusions about her shaving habits [sic].

(Doc. 30 at 3-4.) Defendant adds that “substantial evidence supports the ALJ’s

conclusion that shaving contributed to Plaintiff’s skin problems.” (Id. at 9.)

B. Standard for Evaluating Opinion Evidence and Subjective

Symptoms

The ALJ is required to consider all the evidence in the record when making

a disability determination. See 20 C.F.R. §§ 404.1520(a)(3), 416.920(a)(3). With

regard to medical opinion evidence, “the ALJ must state with particularity the

weight given to different medical opinions and the reasons therefor.” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial weight

must be given to a treating physician’s opinion unless there is good cause to do

otherwise. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).

“‘[G]ood cause’ exists when the: (1) treating physician’s opinion was not

bolstered by the evidence; (2) evidence supported a contrary finding; or (3)

treating physician’s opinion was conclusory or inconsistent with the doctor’s own

medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).

When a treating physician’s opinion does not warrant controlling weight, the ALJ

must nevertheless weigh the medical opinion based on: (1) the length of the

treatment relationship and the frequency of examination, (2) the nature and

extent of the treatment relationship, (3) the medical evidence supporting the

opinion, (4) consistency of the medical opinion with the record as a whole, (5)

specialization in the medical issues at issue, and (6) any other factors that tend

to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6),

416.927(c)(2)-(6).

Although a treating physician’s opinion is generally entitled to more weight

than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d 513, 518

(11th Cir. 1984) (per curiam); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), “[t]he

opinions of state agency physicians” can outweigh the contrary opinion of a

treating physician if “that opinion has been properly discounted,” Cooper v.

Astrue, No. 8:06-cv-1863-T-27TGW, 2008 WL 649244, *3 (M.D. Fla. Mar. 10,

2008). Further, “the ALJ may reject any medical opinion if the evidence supports

a contrary finding.” Wainwright v. Comm’r of Soc. Sec. Admin., No. 06-15638,

2007 WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam); see also Sryock v.

Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (same).

“The ALJ is required to consider the opinions of non-examining state

agency medical and psychological consultants because they ‘are highly qualified

physicians and psychologists, who are also experts in Social Security disability

evaluation.’” Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. May 2, 2008)

(per curiam); see also SSR 96-6p5 (stating that the ALJ must treat the findings of

State agency medical consultants as expert opinion evidence of non-examining

sources). While the ALJ is not bound by the findings of non-examining

physicians, the ALJ may not ignore these opinions and must explain the weight

given to them in his decision. SSR 96-6p.

5 SSR 96-6p has been rescinded and replaced by SSR 17-2p effective March 27,

2017. However, because Plaintiff’s applications for DIB and SSI predated March 27,

2017, SSR 96-6p was still in effect on the date of the ALJ’s decision.

When a claimant seeks to establish disability through her own testimony of

pain or other subjective symptoms, the Eleventh Circuit’s three-part “pain

standard” applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per

curiam). “If the ALJ decides not to credit such testimony, he must articulate

explicit and adequate reasons for doing so.” Id.

The pain standard requires (1) evidence of an underlying medical

condition and either (2) objective medical evidence that confirms the

severity of the alleged pain arising from that condition or (3) that the

objectively determined medical condition is of such a severity that it

can be reasonably expected to give rise to the alleged pain.

Id.

Once a claimant establishes that her pain is disabling through “objective

medical evidence from an acceptable medical source that shows . . . a medical

impairment(s) which could reasonably be expected to produce the pain or other

symptoms,” pursuant to 20 C.F.R. §§ 404.1529(a), 416.929(a), “all evidence

about the intensity, persistence, and functionally limiting effects of pain or other

symptoms must be considered in addition to the medical signs and laboratory

findings in deciding the issue of disability,” Foote, 67 F.3d at 1561. See also

SSR 16-3p6 (stating that after the ALJ finds a medically determinable impairment

exists, the ALJ must analyze “the intensity, persistence, and limiting effects of the

individual’s symptoms” to determine “the extent to which an individual’s

6 SSR 16-3p rescinded and superseded SSR 96-7p, eliminating the use of the

term “credibility,” and clarifying that “subjective symptom evaluation is not an

examination of an individual=s character.” SSR 16-3p.

symptoms limit his or her ability to perform work-related activities”).

As stated in SSR 16-3p:

In considering the intensity, persistence, and limiting effects of an

individual’s symptoms, [the ALJ must] examine the entire case

record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of

symptoms; statements and other information provided by medical

sources and other persons; and any other relevant evidence in the

individual’s case record.

. . .

In evaluating an individual’s symptoms, it is not sufficient for our

adjudicators to make a single, conclusory statement that “the

individual’s statements about his or her symptoms have been

considered” or that “the statements about the individual’s symptoms

are (or are not) supported or consistent.” It is also not enough for

our adjudicators simply to recite the factors described in the

regulations for evaluating symptoms.7 The determination or

decision must contain specific reasons for the weight given to the

individual’s symptoms, be consistent with and supported by the

evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated the

individual’s symptoms.

. . .

In evaluating an individual’s symptoms, our adjudicators will not

assess an individual’s overall character or truthfulness in the manner

typically used during an adversarial court litigation. The focus of the

evaluation of an individual’s symptoms should not be to determine

whether he or she is a truthful person. Rather, our adjudicators will

focus on whether the evidence establishes a medically determinable

impairment that could reasonably be expected to produce the

individual’s symptoms and given the adjudicator’s evaluation of the

7 These factors include: (1) a claimant’s daily activities; (2) the location, duration,

frequency, and intensity of the claimant’s pain or other symptoms; (3) any precipitating

and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any

medication taken to alleviate the claimant’s pain or other symptoms; (5) any treatment,

other than medication, received by the claimant to relieve the pain or other symptoms;

(6) any measures (other than treatment) used to relieve the pain or other symptoms

(e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping

on a board); and (7) any other factors concerning the claimant’s functional limitations

and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3); SSR 16-3p.

individual’s symptoms, whether the intensity and persistence of the

symptoms limit the individual’s ability to perform work-related

activities[.]

SSR 16-3p.

“[A]n individual’s attempts to seek medical treatment for symptoms and to

follow treatment once it is prescribed” will also be considered “when evaluating

whether symptom intensity and persistence affect the ability to perform work-

related activities.” Id. “[I]f the frequency or extent of the treatment sought by an

individual is not comparable with the degree of the individual’s subjective

complaints, or if the individual fails to follow prescribed treatment that might

improve symptoms, [the adjudicator] may find the alleged intensity and

persistence of an individual’s symptoms are inconsistent with the overall

evidence of record.” Id. However, the adjudicator “will not find an individual’s

symptoms inconsistent with the evidence in the record on this basis without

considering possible reasons he or she may not comply with treatment or seek

treatment consistent with the degree of his or her complaints.” Id. In considering

an individual’s treatment history, the adjudicator may consider, inter alia, one or

more of the following:

• That the individual may have structured his or her activities to

minimize symptoms to a tolerable level by avoiding physical

activities or mental stressors that aggravate his or her symptoms;

• That the individual may receive periodic treatment or

evaluation for refills of medications because his or her symptoms

have reached a plateau;

• That the individual may not agree to take prescription

medications because the side effects are less tolerable than the

symptoms;

• That the individual may not be able to afford treatment and

may not have access to free or low-cost medical services;

• That a medical source may have advised the individual that

there is no further effective treatment to prescribe or recommend

that would benefit the individual;

• That due to various limitations (such as language or mental

limitations), the individual may not understand the appropriate

treatment for or the need for consistent treatment.

Id.

C. Relevant Evidence

On August 21, 2014, Plaintiff received treatment for symptoms of

hidradenitis suppurativa.8 (Tr. 464 (reporting such symptoms for over ten years);

see also Tr. 561 (reporting that Plaintiff underwent surgery for her hidradenitis

suppurativa in the past, which helped a little, but she was still getting recurrent

abscesses).) Her physical examination revealed “multiple papular, erythematous

lesions” in the bilateral groin and left axilla areas, but no drainage. (Tr. 463.)

She was prescribed Clindamycin and was referred to a dermatologist. (Tr. 463-

64.)

On May 14, 2015, Plaintiff sought treatment for a skin lesion in the right

axilla reportedly due to “shaving and the summer heat.” (Tr. 561.) The lesion

was tender, but without drainage. (Tr. 562.) She was prescribed Bactrim and

Mupirocin ointment for use “after shaving.” (Tr. 563.)

On June 29, 2015, Plaintiff reported that her skin lesions had resolved with

8 Many of the treatment notes pertaining to Plaintiff’s hidradenitis suppurativa are

authored by various nurse practitioners.

Bactrim, and even though they returned later, they stayed “very small, like

pimples, due to using the Mupirocin” ointment. (Tr. 555.) On examination,

“[p]ustules were seen within the armpits x1, uncomplicated” and “on both

buttocks x2 to 3, uncomplicated.” (Tr. 559.) Plaintiff was prescribed Hibiclens

body wash for use in the shower one day prior to shaving. (Id.) During a follow-

up appointment on August 19, 2015, the prescription for Bactrim was re-filled for

an abscess under Plaintiff’s left arm (with erythematous, serous drainage) and

groin area. (Tr. 551-53.)

On September 21, 2015, Plaintiff had localized skin lesions in the bilateral

axillae and groin area, as well as erythematous, serous drainage under her left

arm. (Tr. 548-49.) The prescriptions for Bactrim and Hibiclens were refilled. (Tr.

550.)

On October 21, 2015, Glenn Bigsby, D.O., a State agency non-examining

consultant, reviewed the records available as of that date and opined that

Plaintiff’s hidradenitis suppurativa was not a severe impairment. (Tr. 197-98.)

Dr. Bigsby noted Plaintiff’s long history of hidradenitis suppurativa, which was

“[w]orse with hot weather and shaving,” but was nevertheless “reasonably well

controlled with [medications] and good[,] aggressive home care and [treatment].”

(Tr. 198.) In sum, the condition had a “generally minimal functional [e]ffect,” and

was, therefore, not severe. (Tr. 198.)

On November 24, 2015, Plaintiff again sought treatment for skin lesions in

her left axilla and right groin lasting for two weeks. (Tr. 626-27.) On

examination, there was a “[s]mall erythematous lump to [the] left axilla and right

groin; no induration; no discharge,” as well as “[s]welling, mass, or lump of skin of

[the] upper limb.” (Tr. 629.) Plaintiff’s prescriptions were refilled, and she was

advised to use liquid anti-bacterial soap and to apply warm compresses to her

left axilla and right groin areas. (Tr. 626, 629-30.)

On February 19, 2016, Plaintiff had erythematous lumps in her left armpit.

(Tr. 624.) She was prescribed Keflex, Mupirocin ointment for use after shaving,

and Hibiclens body wash for use prior to shaving. (Tr. 625.)

On May 17, 2016, Plaintiff requested a refill of her antibiotic medication for

an active lesion in the right groin area. (Tr. 618.) On examination, “[a] single

nodule was seen, purple[,] which [was] subcutaneous with tenderness, and in the

pubic area on the right[,] without drainage.”9 (Tr. 620.) Plaintiff was prescribed

Bactrim, Hibiclens, and Mupirocin. (Tr. 621.)

On October 20, 2016, Plaintiff had a flare-up of her hidradenitis

suppurativa. (Tr. 608.) On examination, there were skin lesions, multiple

pustules, and furuncles. (Tr. 610, 612.) She was prescribed Doxycycline

Hyclate and Hibiclens and was referred to a dermatologist. (Tr. 613.) On

November 22, 2016, Plaintiff had “another flare up of her hidradenitis.” (Tr. 604

(noting “[s]kin symptoms abscess in groin from shaving”).) She was prescribed

Bactrim and Keflex. (Tr. 606.)

9 The record reflects that despite her flare-ups, Plaintiff remained sexually active.

(See Tr. 548, 552, 562, 597, 601, 605, 609, 616, 619, 626.)

On February 23, 2017, Plaintiff presented to Lucas Bowling, ARNP, with

rash in the groin area. (Tr. 600-01.) She reported that “when she shave[d], she

[got] infections often and ha[d] no intention” to stop shaving. (Tr. 600.) Plaintiff

was advised “to limit or stop shaving if getting frequent skin infections,” but she

refused to do so. (Tr. 603 (also noting that Plaintiff refused to stop smoking10).)

She was prescribed Keflex for the bacterial infection and Hibiclens body wash for

use “one day prior to shaving as needed.” (Id.)

On April 10, 2017, Plaintiff’s physical examination revealed no skin lesions

or rash, but her prescription for Mupirocin ointment was re-filled for use after

shaving. (Tr. 597-98.)

On June 6, 2017, Lucas Bowling, ARNP, filled out a Hidradenitis

Suppurativa Questionnaire, opining that Plaintiff experienced skin lesions

involving both axillae, both inguinal areas, and the perineum; and that her

condition had persisted for at least three months despite continuing treatment as

prescribed. (Tr. 631.)

D. The ALJ’s Decision

The ALJ found at step two of the sequential evaluation process that

Plaintiff’s hidradenitis suppurativa was a severe impairment. (Tr. 15.) At step

three, the ALJ found that Plaintiff did not have an impairment or combination of

impairments that met or medically equaled the severity of one of the listed

10 Plaintiff has been reportedly smoking one pack per day since she was 16

years old. (Tr. 604, 615.)

impairments. (Id.) The ALJ stated:

Section 8.06 (Hidradenitis Suppurativa) was considered, but the

claimant does not have extensive skin lesions involving both axillae,

both inguinal areas[,] or the perineum that persist for at least 3

months despite continuing treatment as prescribed. Although

Exhibit 10F notes that the claimant does meet these requirements,

this is simply not supported by the evidence. Exhibit 9F, p. 13 notes

that she usually gets the hidradenitis suppurativa lesions after

shaving and she does not want to stop shaving. She has been

advised to limit or stop shaving, but she has refused (Exhibit 9F, p.

8). Accordingly, she is not following prescribed treatment

recommendations. The evidence also shows that the claimant’s

lesions usually resolve with the use of antibiotics but then recur

again later. The claimant admitted that her lesions last about 7 days

and that she has them up to twice monthly.

(Id.)

Then, before proceeding to step four, the ALJ determined that Plaintiff had

the RFC to perform sedentary work, except she could:

• occasionally push/pull bilaterally with the lower and upper extremities;

• occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl;

• never climb ladders, ropes, or scaffolds;

• never be exposed to extreme heat and humidity;

• occasionally be exposed to workplace hazards, such as unprotected

heights and moving machinery;

• work indoors in conditioned, climate-controlled air;

• perform unskilled, simple, routine, repetitive tasks with simple, work-related

decision-making;

• work with no more than occasional changes in the general nature of the

work setting and tasks to be performed;

• not work at a production pace, defined to mean on an assembly line, or

where she is paid by the piece produced; and

• have no more than occasional interaction with co-workers and supervisors

and no work-related interaction with the general public.

(Tr. 17.)

In making these findings, the ALJ discussed Plaintiff’s testimony with

respect to her hidradenitis suppurativa, as follows:

[T]he claimant testified that she has [hidradenitis] with frequent

outbreaks. She has not been shaving lately but she is still having

outbreaks. Before, it had a lot to do with shaving. She shaves

because it is part of her hygiene. Her outbreaks start out as small

bumps and they can get as big as a golf ball or grapefruit. The

bumps are full of pus. She cannot do anything when the bumps are

present and cannot wear anything. She gets them underneath both

arms and her whole bottom part (groin and towards the back). The

bumps are very painful and sometimes she has to lie down to deal

with the pain. When she has the bumps on her armpits, it is difficult

for her to move her arms; which irritates the bumps. Having her

arms closed also irritates the bumps and she has to keep her arms

open. When she has bumps in her groin area, she has problems

moving around, walking and standing. With bad outbreaks, she

cannot do anything. The most she could do is go to the bathroom to

clean the infected area. With groin outbreaks, she has to keep her

legs open and apart. When she has outbreaks, she does not wear

any type of clothing at all because it causes irritation. She cannot go

out of the house if she has an outbreak. On average, the outbreaks

last about seven days. If she had a job and had an outbreak, she

would not be able to work because the outbreaks occur at least one

to two times per month. The hotter the temperature, the more

outbreaks she has, but she gets outbreaks all year long. Her doctor

treats the condition with antibiotics, creams and a certain type of

body wash that kills bacteria. It does not prevent the outbreaks;

there is no cure. The medications help to heal the infection for the

moment. When she has outbreaks, her father has to do everything

for her, including preparing meals, cleaning and doing laundry. She

has to lie in bed because she cannot move.

. . . She is okay when she does not have outbreaks; she has no

problems standing or walking. When she has an outbreak, she is in

bed and cannot do anything.

. . . Her doctor gives her Bactrim for the outbreaks, and the Bactrim

cures the infection. When the pus comes out, she has open wounds

that eventually scar over, and she has many scars from this.

(Tr. 18-19.)

The ALJ found Plaintiff’s statements about the intensity, persistence, and

limiting effects of her symptoms “not entirely consistent with the medical

evidence and other evidence in the record.” (Tr. 19.) The ALJ explained:

The medical evidence confirms that the claimant has a history of

hidradenitis suppurativa. The State agency found this condition was

non-severe, and the medical evidence does show that the condition

appears to get better. I have, nevertheless, given the claimant every

benefit of the doubt and find it is a “severe” impairment, but the

condition does not meet a listing and her testimony at the hearing

regarding this condition is not consistent with the medical evidence

of record. As noted above, in order to meet the listing for this

condition, the claimant would have to have hidradenitis suppurativa

lesions that persist for three months despite treatment. The

evidence shows, though, that the claimant gets these lesions after

she shaves and, despite being advised to limit or stop shaving

altogether, the claimant has refused to stop shaving (Exhibits 1F,

p.15 and 9F, p. 8). Thus, she is not following treatment

recommendations.

. . .

There is no doubt that the claimant suffers from a severe skin

condition. Unfortunately, the medical evidence of record is riddled

with reference[s] to the claimant’s problems being secondary to

shaving.

The claimant also testified that she is basically bedridden when she

has a flare[-up] and has to be nude, wearing no clothes at all.

However, this is not expressed anywhere in the medical evidence of

record. Instead, the evidence shows that in June 2015, she reported

that the lesions resolved with Bactrim and although they returned,

they stayed very small (Exhibit 7F, p. 21). In November 2015, she

had a lesion at the left groin described as small with no discharge

(Exhibit 9F, p. 31). In February 2017, she actually refused genital

examination and in April 2017, her examination was benign (Exhibit

9F, pp. 5 and 1). These records are not consistent with the

claimant’s allegations of disabling skin lesions. The claimant also

testified that she could maybe lift 2 to 3 pounds, but there is no

impairment that would support such a limitation. She then went on

to state that she could lift a gallon of milk and 12-pack of soda.

(Tr. 19-20.)

The ALJ then addressed the medical opinions in the record. The ALJ gave

“little weight” to the State agency medical consultant’s opinion that Plaintiff’s

hidradenitis suppurativa was not a severe impairment. (Tr. 20.) In finding that

this condition was a severe impairment, the ALJ gave Plaintiff “every benefit of

the doubt” and limited her to no more than sedentary work with postural and

environmental limitations. (Id.) The ALJ added: “The condition is well

documented in the evidence, although it would likely significantly improve and/or

resolve were the claimant to follow her doctor’s recommendation that she stop

shaving. Although the claimant claims that she still gets the lesions even when

she does not shave, this is not shown anywhere in the evidence of record.” (Id.)

Further, the ALJ gave “no weight” to the opinion of a nurse practitioner who

stated that Plaintiff met the requirements of the listing. (Tr. 21.) The ALJ

explained:

The claimant testified that the lesions last one week and she might

have two outbreaks a month, at best. This is not listing level

severity. Further, there is no basis to consider that her impairment is

as bad/painful as she alleges, given the relatively effortless medical

directives with which she remains non-compliant. Exhibit 7F, p. 21,

dated in June 2015, also notes the condition resolved with Bactrim

but returned, and she reported that they now stay “very small” and at

that point states she is “afraid” to shave. Thus, outbreaks are not so

bad at that point and appear a bit more controlled. “Fear” of shaving

may suggest that she is not shaving, thus contributing to the

symptom control. But it also suggests contemplation to continue

shaving. Finally, Exhibit 1F notes episodes monthly, which is not the

same as one episode lasting three months, as required by the

listing.

(Id.)

E. Analysis

The Court finds that the ALJ’s decision is based on correct legal standards

and is supported by substantial evidence in the record. First, the ALJ correctly

observed that Plaintiff’s testimony regarding her skin condition was inconsistent

with the medical evidence in the record. Plaintiff testified that during outbreaks,

she cannot wear any clothes, cannot do anything, and must stay in bed due to

the large and painful bumps in her axillae and groin area. (See Tr. 121-23

(stating that the bumps can become as big as a golf ball or a grapefruit); Tr. 125;

Tr. 129.) However, as the ALJ noted, the medical evidence of record does not

corroborate Plaintiff’s statements. (Tr. 20.) There are no references in the

medical records that the bumps Plaintiff experienced during outbreaks were as

large and/or as painful as she described them or that they made it uncomfortable

to wear any clothes or to engage in any activity other than rest in bed. To the

contrary, the evidence shows that as a result of Plaintiff’s treatment with Bactrim

and Mupirocin, her skin lesions stayed “very small, like pimples.” (Tr. 555; see

also Tr. 629.) Further, while there were flare-ups every few months and

sometimes every few weeks (but not more frequently than once a month), for the

most part, there was no drainage, pain, or other symptoms to interfere with

Plaintiff’s daily activities. (See, e.g., Tr. 463, 629; Tr. 562 & 620 (noting

tenderness but no drainage); but see Tr. 548-49 & 551-53 (noting erythematous,

serous drainage).)

Also, contrary to Plaintiff’s testimony that during outbreaks she could not

do anything and relied on her father for meal preparation, cleaning, and doing the

laundry (Tr. 124-25), her father stated in a third-party function report that Plaintiff

was able to clean and do laundry (Tr. 374-75). Moreover, the medical providers

have not noted any observed or reported difficulties in Plaintiff’s ability to perform

any activities of daily living. Thus, the ALJ’s findings about the severity and

limiting effects of Plaintiff’s skin condition are supported by substantial evidence

in the record.

Plaintiff argues that the ALJ made a medically unsupported and erroneous

assumption about the cause of her skin condition when the ALJ found that

shaving contributed to the condition. Plaintiff points out that she was never

advised to stop shaving and that shaving did not cause her condition. Yet, the

record shows that Plaintiff was advised “to limit or stop shaving if getting frequent

skin infections” and she refused to do so. (Tr. 603.) In fact, during the same

visit, Plaintiff reported that “when she shave[d], she [got] infections often and

ha[d] no intention” to stop shaving. (Tr. 600.) There are also other references in

the medical record that Plaintiff reported symptoms due to shaving and hot

weather. (Tr. 561, 604.) The records indicate that Plaintiff understood that

shaving contributed to her symptoms by leading to more frequent infections.

(See Tr. 561, 600, 603-04; see also Tr. 555 (noting, on June 29, 2015, that

Plaintiff was “still afraid to shave”).) Thus, the ALJ’s findings that shaving

contributed to Plaintiff’s symptoms of hidradenitis suppurativa and that Plaintiff

refused to limit or stop shaving are supported by substantial evidence in the

record. The fact that Plaintiff was prescribed medicated body wash (Hibiclens)

and ointment (Mupirocin) for use before and after shaving does not undermine

the ALJ’s findings, which are supported by substantial evidence in the record.

III. Conclusion

The Court does not make independent factual determinations, re-weigh the

evidence, or substitute its decision for that of the ALJ. Thus, the question is not

whether the Court would have arrived at the same decision on de novo review;

rather, the Court’s review is limited to determining whether the ALJ’s findings are

based on correct legal standards and supported by substantial evidence. Based

on this standard of review, the ALJ’s decision that Plaintiff was not disabled

within the meaning of the Social Security Act for the time period in question is

due to be affirmed.

Accordingly, it is ORDERED:

1. The Commissioner’s decision is AFFIRMED.

2. The Clerk of Court is directed to enter judgment accordingly,

terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, on September 3, 2020.

MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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