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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ELLIOT P., Case No. 8:25-cv-00052-KES

12 Plaintiff,

13 v. MEMOR ANDUM OPINION

14 FRANK BISIGNANO, AND ORDER

15 Commissioner of Social Security,

16 Defendant.1

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18 I.

19 INTRODUCTION

20 On January 13, 2025, Plaintiff Elliot P. (“Plaintiff”) filed a Complaint for 21 review of denial of social security disability benefits. (Dkt. 1.) Plaintiff filed a 22 Plaintiff’s Brief under Rule 6 of the Supplemental Rules for Social Security Actions 23 under

(g). (“PB” at Dkt. 11.) Defendant filed a responding 24 Commissioner’s Brief under Rule 7. (“CB” at Dkt. 13.) Plaintiff filed a reply brief. 25 1 Frank Bisignano became Commissioner of Social Security on May 7, 2025. 26 Under Federal Rule of Civil Procedure 25(d), he is automatically substituted as 27 Defendant in this suit. The Clerk is directed to update the electronic docket accordingly. 28 1 (“PRB” at Dkt. 14.) For the reasons stated below, the Commissioner’s decision 2 denying benefits is REVERSED, and the case is remanded for further 3 administrative proceedings consistent with this decision. 4 II. 5 BACKGROUND 6 From 2005 to 2020, Plaintiff worked as a singer and piano player. 7 Administrative Record (“AR”) 69, 290. In April 2022, he applied for Disability 8 Insurance Benefits (“DIB”), alleging he could not work as of March 14, 2020, due 9 to chronic gastrointestinal issues and abbesses affecting his buttocks, conditions 10 that made him unable to commit to performance schedules and unable to sit for 11 long periods of time. AR 230, 263. 12 On February 6, 2024, the ALJ conducted a hearing at which a vocational 13 expert (“VE”) and Plaintiff testified. AR 63-86. On February 21, 2024, the ALJ 14 published an unfavorable opinion. AR 43-62. The ALJ found that Plaintiff 15 suffered from the severe, medically determinable impairments (“MDIs”) of 16 “hypertension, obstructive sleep apnea (OSA), benign prostatic hypertrophy, 17 ascending aortic aneurysm, hidradenitis suppurativa, hemorrhoids, irritable bowel 18 syndrome (IBS) and degenerative disc disease of the lumbar spine.” AR 48. 19 Hidradenitis suppurativa is a condition that causes small, painful lumps to form 20 under the skin, usually in areas where the skin rubs together, such as “the armpits, 21 groin, buttocks and breasts.” See https://www.mayoclinic.org/diseases- 22 conditions/hidradenitis-suppurativa/symptoms-causes/syc-20352306. “Some 23 bumps or sores get bigger, break open and drain pus with an odor.”

24 The ALJ determined that despite these MDIs, Plaintiff had the residual 25 functional capacity (“RFC”) to sustain fulltime “medium” work with some 26 additional restrictions on postural activities. AR 49. The ALJ found that Plaintiff 27 could “sit for six hours out of an eight-hour workday” and did not include in the 28 RFC findings any special accommodations for bathroom breaks or missing work 1 when symptoms flared. AR 49. 2 Based on these RFC findings, the VE’s testimony, and other evidence, the 3 ALJ concluded that Plaintiff could still perform his past relevant work as a piano 4 player. AR 56. Notably, the VE testified that when Plaintiff was unable to sit, he 5 would be unable to perform as a piano player. AR 82. The VE also testified that 6 missing more than two days of work per month would be “work preclusive” for a 7 piano player. AR 83-84. The ALJ found Plaintiff not disabled. AR 57. 8 III. 9 ISSUE PRESENTED 10 Issue One: Whether the ALJ erred by failing to give clear and convincing 11 reasons for discounting Plaintiff’s subjective symptom testimony. (PB at 6.) 12 Issue Two: Whether the ALJ erred in evaluating the medical opinion 13 evidence. (PB at 19.) 14 IV. 15 DISCUSSION 16 A. ISSUE ONE: Plaintiff’s Testimony. 17 1. Relevant Law. 18 The ALJ engages in a two-step analysis to evaluate a claimant’s subjective 19 symptom testimony. Lingenfelter v. Astrue,

(9th Cir. 20 2007). “First, the ALJ must determine whether the claimant has presented 21 objective medical evidence of an underlying impairment [that] could reasonably be 22 expected to produce the pain or other symptoms alleged.”

. If so, the 23 ALJ may not reject a claimant’s testimony “simply because there is no showing that 24 the impairment can reasonably produce the degree of symptom alleged.” Smolen v. 25 Chater,

, 1282 (9th Cir. 1996). 26 Second, if the claimant meets the first test, the ALJ may discredit the 27 claimant’s subjective symptom testimony only by making specific findings that 28 support the conclusion. Berry v. Astrue,

(9th Cir. 2010); 1 Burrell v. Colvin,

(9th Cir. 2014). Unless an ALJ finds that a 2 claimant is malingering or has failed to provide objective medical evidence in 3 support of his or her testimony, an ALJ must provide clear and convincing reasons 4 for rejecting a claimant’s subjective testimony about the severity of experienced 5 symptoms. Brown-Hunter v. Colvin,

(9th Cir. 2015). While 6 an ALJ’s findings must be properly supported and sufficiently specific to assure a 7 reviewing court that the ALJ did not “arbitrarily discredit” a claimant’s subjective 8 statements, an ALJ is not “required to believe every allegation” of disability. Fair 9 v. Bowen,

(9th Cir. 1989). 10 2. Relevant Administrative Proceedings. 11 The ALJ summarized Plaintiff’s testimony. AR 49-50. Plaintiff testified “he 12 could not work due to a reoccurring rheumatological issue on his buttocks [which 13 cased] a wound the size of a tennis ball to form, gastrointestinal issues, and rectal 14 issues.” He “experienced bloating and pain in his gastrointestinal system that 15 occurred randomly and did not appear to be aggravated by any specific diet.” AR 16 50, referring to testimony at AR 66-67, 69. He “spent an hour in the bathroom 17 every morning.” AR 50, referring to testimony at AR 66, 70. He testified that he 18 “was unable to commit or adhere to a schedule due to the unpredictability of his 19 rheumatological and gastrointestinal issues.” AR 50, referring to testimony at AR 20 67. He “experienced the formation of an abscess on his buttocks approximately 21 every three to five months. AR 50, referring to testimony at AR 70. When this 22 occurred, he “could only sit on chairs or sofas with extra cushions due to buttock 23 pain.” AR 50, referring to testimony at AR 70-71. He testified that the skin 24 condition affecting his buttocks would heal and then relapse. AR 67, 72. 25 The ALJ found that Plaintiff’s MDIs “could reasonably be expected to cause 26 the alleged symptoms; however, [his] statements concerning the intensity, 27 persistence and limiting effects of these symptoms are not entirely consistent with 28 the medical evidence and other evidence in the record for the reasons explained in 1 this decision.” AR 50. As reasons, the ALJ explained that Plaintiff’s 2 gastrointestinal issues would not interfere with his ability to work in the evening as 3 a piano player because he typically only experienced one prolonged bowel 4 movement per day, and that was in the morning. AR 50. The ALJ found that 5 Plaintiff’s buttock abscesses improved and eventually resolved with treatment. AR 6 50, summarizing records showing improvement with treatment. The ALJ also 7 discounted Plaintiff’s testimony because his “treatment records … document some 8 treatment noncompliance.” AR 50. 9 3. Analysis of Claimed Error. 10 Plaintiff argues that evidence that his buttock abscesses improved and 11 eventually healed with treatment neither (1) contradicts his testimony nor 12 (2) demonstrates that he would not miss an unacceptable number of workdays when 13 the condition reoccurred. Plaintiff agrees that some documents showed 14 improvement, but other showed reoccurrence and flare ups. (PB at 14-16, listing 15 such records.) Plaintiff contends that since his job as a piano player requires sitting, 16 the ALJ implicitly found that he would not have more than two days per month 17 when he was unable to sit. But the ALJ neither stated that finding explicitly nor 18 explained what evidence supported it. According to Plaintiff, without doing do, the 19 ALJ failed to convincingly undermine his testimony that the unpredictable nature of 20 his symptoms renders him unable to work. 21 The Commissioner contends that the ALJ convincingly contradicted 22 Plaintiff’s testimony about periodic flare ups by citing “a number of normal 23 physical examinations and medical records documenting improved symptoms with 24 treatment.” (CB at 8.) But the records of improvement cited by the ALJ (see AR 25 502) interspersed with other records show a pattern of reoccurrence, which is 26 2 Among other records, the ALJ cited “Ex. 18F.” AR 50. Plaintiff argues 27 that citing to a 250-page exhibit does not sufficiently identify the evidence of 28 improvement on which the ALJ relied. (PB at 9.) The Court considers the 1 consistent with Plaintiff’s testimony rather than contradictory, as follows: 2 Date AR Content of Medical Record 3 7/19/20 448 Plaintiff “continues to c/o recurrences” of hidradenitis 4 suppurativa “requiring long-term antibiotic” treatment. 5 9/1/20 611 Plaintiff “asks about boil that has been on left buttock.” 6 3/15/21 452 Plaintiff “was on Bactrim for 5-6 weeks starting in January, 7 never went away, relapsed after 2 weeks, much worse, more 8 painful.” 9 4/6/2021 405 Per the ALJ, Plaintiff “reported his prescription of Betaine 10 was helping.” AR 50. This record states, “Now on Bactrim 11 for a cellulitis on left gluteus. almost completed course and 12 cellulitis nearly healed.” AR 406. 13 7/6/21 441 Plaintiff was taking antibiotics for “Recurrent boil on left 14 buttock.” 15 8/11/21 437 Plaintiff “Has had relapse of cyst about 15 times since the 16 end of 2020.” “This is the worst it has ever been - hurts to 17 walk and sit.” 18 9/1/21 434, Plaintiff went to the emergency room “a few times” due to 19 436 open, infected abscess. “The abscess present at that time 20 [3/22/21], did resolve. However, he is now dealing with one 21 in the same location.” 22 10/20/21 430, Plaintiff was “having to deal with the recurrent skin 23 433 infections, that are taking several months to resolve.” He 24 was “Unable to sit comfortably due to hidradenitis on 25 buttocks.” The ALJ quoted AR 429 as saying Plaintiff had 26 “a small open sore with some inflammation on the buttock.” 27 evidence the ALJ identified by citing to specific pages. 28 1 AR 50. 2 4/14/22 750-51 The ALJ said “physical examination revealed normal 3 findings.” AR 50. This was a telemedicine visit. AR 748. 4 Plaintiff reported, “Hiddranitis Suppuritiva – recurring over 5 last 2 yrs. Feels something internal is causing this. 6 Klebsiella culture. Ended antibiotics 2 weeks ago.” AR 7 750. 8 6/27/22 538 Per the ALJ, Plaintiff “reported his symptoms had improved 9 a lot.” AR 50. This record discusses that his gastrointestinal 10 symptoms “have improved a lot” by avoiding nuts and seeds, 11 but he is “still having diarrhea daily” and “complains of gas 12 pain that comes and goes.” AR 538. There was no skin 13 “lesion or rash.” AR 540. 14 2/2/23 842-43 Plaintiff had an appointment to follow up on “a cyst on his L 15 buttock” and evaluate “another cyst on his [right] buttocks” 16 that was causing “tenderness” and was “mildly inflamed.” 17 March/ 844-45 Per the ALJ, “Physical examinations revealed a well healed 18 April buttock cyst with no infection, no concerning feats and no 19 2023 drainage.” AR 50. Plaintiff’s doctors discussed possible 20 treatment with Humira because he “experiences flare ups.” 21 AR 845. 22 7/26/23 856 Plaintiff reported that the cysts on his left and right buttocks 23 were “healing well” with continued use of antibiotics, and he 24 saw no evidence of reoccurrence. AR 855. His doctor 25 prescribed a new ointment. AR 856. 26 9/24/23 955, Plaintiff presented at urgent care due to “skin issue on 27 957 buttocks x 1 week;” abscess “measures about 3 in. X 3 in.” 28 1 10/4/23 1086 A wound culture showed “growth of Klebsiella pneumoniae, 2 resistant to bactrim, sensitive to tetracycline and other 3 antibiotics.” 4 10/12/23 1015 Plaintiff returned for a “wound check.” His “wound looks 5 good and healed.” 6 11/1/23 1064 Plaintiff was bandaging abscesses that were inflamed, 7 opened, and draining. 8 11/15/23 1095 Hidradenitis suppurativa that “opened up a few months ago” 9 was healed “but now has additional lesion toward bottom of 10 grown on the right … opened twice.” 11 In sum, the ALJ’s main reason for discounting Plaintiff’s testimony about the 12 primary reason he cannot work (i.e., the fluctuating and unpredictable nature of 13 symptoms) failed to identify an inconsistency and lacked sufficient explanation to 14 be “clear and convincing.” It remains unclear if the ALJ found that Plaintiff’s 15 hidradenitis suppurativa would never cause him to be unable to sit for six hours per 16 day or would never flare up for more than two days per month. 17 The ALJ’s second reason, i.e., non-compliance with treatment, is also not a 18 clear and convincing reason to have discounted Plaintiff’s testimony about the 19 limiting effects of his hidradenitis suppurativa flare ups because (1) the supporting 20 evidence that the ALJ discussed does not seem to relate to that condition (see AR 21 50) and (2) the ALJ did not discuss any reasons Plaintiff had (see PB at 11) for 22 declining recommended treatment. 23 Because the ALJ’s failure to give clear and convincing reasons, supported by 24 substantial evidence, for discounting Plaintiff’s testimony justifies remand for 25 further administrative proceedings, the Court need not address Plaintiff’s other 26 claims of error. On remand, the ALJ may wish to consider them. 27 28 1 VI. 2 CONCLUSION 3 Based on the foregoing, IT IS ORDERED that judgment shall be entered 4 | REVERSING the decision of the Commissioner and REMANDING the case for 5 | further administrative proceedings consistent with this decision. 6 ’| DATED: June 6, 2025 Venn 6. Scot 8 KAREN E. SCOTT 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28