Callaway v. Commissioner Social Security Administration

Filing 26

AMENDED OPINION AND ORDER. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 3/30/2017 by Judge Anna J. Brown. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL PATRICK CALLAWAY,
Plaintiff,

3:15-CV-02082-BR
AMENDED OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

MICHAEL PATRICK CALLAWAY
2040 S.W. 209th Ct.
Aloha, OR 97003
[phone]
Plaintiff, Pro Se

1

On January 23, 2017, Nancy A. Berryhill was appointed
Acting Commissioner of the Social Security Administration and
pursuant to Federal Rule of Civil Procedure 25(d) is substituted
as Defendant in this action.
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- AMENDED OPINION AND ORDER

BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
HEATHER L. GRIFFITH
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Michael Patrick Callaway seeks judicial review of
a final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and II of the Social Security
Act.

This Court has jurisdiction to review the Commissioner's

final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed his applications for DIB and SSI on

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- AMENDED OPINION AND ORDER

November 1, 2010.

Tr. 191, 198.2

onset date of June 1, 2009.

Plaintiff alleged a disability

His applications were denied

initially and on reconsideration.

An Administrative Law Judge

(ALJ) held a hearing on August 23, 2012.

Tr. 33-80.

hearing Plaintiff was represented by an attorney.

At the

Plaintiff, a

lay witness, and a vocational expert (VE) testified at the
hearing.
The ALJ issued a decision on September 21, 2012, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 36-51.

Pursuant to 20 C.F.R. § 404.984(d) that

decision became the final decision of the Commissioner on
September 3, 2015, when the Appeals Council denied Plaintiff's
request for review.

Tr. 3-6.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND
Plaintiff was born on July 3, 1985, and was 27 years old at
the time of the hearing.

Tr. 191.

Plaintiff has an Associates

Degree and, at the time of the hearing, was taking classes
towards a Masters Degree in architecture.

Tr. 38-41.

Plaintiff

has past relevant work experience as a construction worker,
janitor, and landscape crew member.

2

Tr. 240, 258.

Plaintiff

Citations to the official transcript of record filed by
the Commissioner on September 9, 2016, are referred to as "Tr."
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- AMENDED OPINION AND ORDER

alleges disability due to fibromyalgia, neuropathy, arthritis,
migraines, herniated discs, muscle spasms, “trigger finger,” and
carpal-tunnel syndrome.

Tr. 234.

Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 19-21, 23-25.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate his

inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
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- AMENDED OPINION AND ORDER

42

U.S.C. § 405(g).

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.

Id. (citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

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- AMENDED OPINION AND ORDER

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful
activity.

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

See

also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairments or combination of impairments.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

20 C.F.R.

See also Keyser, 648

F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
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- AMENDED OPINION AND ORDER

regular and continuing basis despite his limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

“A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *1.

20 C.F.R.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

Taylor v. Comm’r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
416.920(a)(4)(iv).

20 C.F.R. §§ 404.1520(a)(4)(iv),

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

See also Keyser, 648 F.3d at 724-25.

Here the

burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).

The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

If the Commissioner meets this burden,

the claimant is not disabled.

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- AMENDED OPINION AND ORDER

20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since his June 1, 2009, alleged
onset date.

Tr. 19.

At Step Two the ALJ found Plaintiff has the severe
impairments of fibromylagia and “right carpal tunnel syndrome,
status post release surgery.”

Tr. 19.

The ALJ found Plaintiff’s

impairments of Raynaud’s Syndrome, irritable-bowel syndrome, and
“minimal degenerative changes in the cervical spine with history
of cervical strain” are nonsevere.

Tr. 20.

The ALJ found

Plaintiff’s alleged attention-deficit disorder and/or attentiondeficit hyperactivity disorder is not a medically determinable
impairment.

Tr. 21.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.

Tr. 21.

The ALJ found Plaintiff has the RFC to perform light

work “except that [he] should avoid concentrated exposure to
extremes of cold.”

Tr. 21.

At Step Four the ALJ concluded Plaintiff could not perform
his past relevant work.

Tr. 26.

At Step Five the ALJ concluded Plaintiff could perform jobs

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that exist in significant numbers in the national economy.
Tr. 26.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION
Plaintiff contends (1) the materials he filed with his
opening Brief provide a basis for remand for further
administrative proceedings; (2) the ALJ erred at Step Three when
he noted there is not any medical listing for fibromyalgia;
(3) the ALJ did not sufficiently consider Plaintiff’s
fibromyalgia when he assessed Plaintiff’s RFC; and (4) the ALJ
erred when he gave “little weight” to the opinion of treating
physician, Burton Silverman, M.D.
I.

The materials Plaintiff filed with his opening Brief do not
provide a basis for remand.
On November 10, 2016, Plaintiff filed his opening Brief and

attached several records, all of which were included in the
administrative record before the Appeals Council except Exhibit
1E (emails between Plaintiff and various professors reflecting
Plaintiff’s class attendance).

Plaintiff asserts this evidence

is sufficient to require remand of this matter to the ALJ for
further consideration.
Sentences four and six of 42 U.S.C. § 405(g) set out “the
exclusive methods by which district courts may remand to the
[Commissioner]” for further evaluation.
U.S. 292, 296 (2002).
9

Shalala v. Schaefer, 509

Sentence six of § 405(g) permits a

- AMENDED OPINION AND ORDER

district court to remand for the Commissioner to consider
additional evidence submitted for the first time to the district
court.

The district court should remand pursuant to sentence six

only when the evidence is new and material and there is good
cause for the claimant’s failure to incorporate the evidence into
the record at a prior proceeding.
six).

42 U.S.C. § 405(g)(sentence

“To be material under [sentence six of] § 405(g), the new

evidence must bear directly and substantially on the matter in
dispute . . . [and] demonstrate that there is a reasonable
possibility that the new evidence would have changed the outcome
of the administrative hearing.”

Mayes, 276 F.3d at 462.

As noted, the only new documents Plaintiff submitted with
his Brief are emails from various professors relating to
Plaintiff’s class absences.

Only one document relates to the

relevant period; that is, an email from the professor of
Plaintiff’s Visual Communication class that Plaintiff took during
the Winter 2012 term in which the professor states Plaintiff was
late to class once and was absent once.
12.

Pl.’s Brief, Ex. 1E at

The remainder of Exhibit 1E relates to classes that

Plaintiff took after the date of the ALJ’s decision.

Exhibit 1E

indicates Plaintiff was able to attend his classes successfully.
For example, the emails reflect Plaintiff missed three out of 21
class sessions of Geology 341 in Spring Term 2015, Plaintiff
completed every quiz and assignment except one in General

10 - AMENDED OPINION AND ORDER

Chemistry I in Winter 2013, and Plaintiff was absent once and
completed all of his assigned work in Wisdom of the Elders in
Fall 2013.

Exhibit 1E also indicates Plaintiff graduated from

the Masters Degree in the architecture program in Fall 2015.
The Court concludes on this record that the evidence
Plaintiff submitted to this Court for the first time is not
material because it neither “bear[s] directly and substantially”
on the relevant period nor demonstrates a reasonable possibility
that the new evidence would have changed the outcome of the
administrative hearing.
Accordingly, the Court concludes the new material does not
provide any basis to remand this matter to the Commissioner.
II.

The ALJ did not err at Step Three when he noted there is not
any medical listing for fibromyalgia.
Plaintiff alleges the ALJ erred when he noted at Step Three

that there is not a medical listing for fibromylagia.

Plaintiff,

however, does not point to any regulation, case, or authority
that establishes there is a medical listing for fibromyalgia.
The Ninth Circuit, in fact, has specifically stated “[a]n alleged
case of fibromyalgia cannot meet the listing for fibromyalgia
because fibromyalgia is not a listed disability.”

Britton v.

Colvin, 787 F.3d 1011, 1012 (9th Cir. 2012)(citing SSR 12–2p, at
*2).

The Court, therefore, concludes the ALJ did not err at Step

Three when he noted there is not any medical listing for

11 - AMENDED OPINION AND ORDER

fibromyalgia.
III. The ALJ reasonably considered Plaintiff’s fibromyalgia when
he assessed Plaintiff’s RFC.
As noted, the ALJ found at Step Two that Plaintiff has the
severe impairment of fibromyalgia.

At Step Three the ALJ

considered Plaintiff’s symptoms related to fibromyalgia set out
in the record and concluded Plaintiff has the RFC to perform
light work.

Specifically, the ALJ noted Plaintiff’s medical

providers reported after several physical examinations that
Plaintiff showed tenderness to palpitation but did not have any
neurological findings.

Tr. 409, 501, 510-11, 524, 526, 533.

The

ALJ also noted reports from April 2012 that indicated Plaintiff
works out at a gym twice a week.

Plaintiff also reported doing

homework, performing household chores, playing frisbee golf,
going shopping, preparing meals, visiting friends, and going to
church.

The ALJ noted Plaintiff regularly attended classes to

obtain his Masters Degree without any accommodation other than an
ergonomic chair.
On this record the Court concludes the ALJ did not err in
his consideration and evaluation of the limiting effects of
Plaintiff’s fibromyalgia when he assessed Plaintiff’s RFC.
IV.

The ALJ did not err when he gave “little weight” to
Dr. Silverman’s opinion.
Plaintiff alleges the ALJ erred when he gave “little weight”

to the August 2012 opinion of Dr. Silverman, treating physician.
12 - AMENDED OPINION AND ORDER

An ALJ may reject an examining or treating physician's
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes "findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record."

Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

When the medical

opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give "clear and convincing reasons" for
rejecting it.

Thomas, 278 F.3d at 957.

See also Lester v.

Chater, 81 F.3d 821, 830-32 (9th Cir. 1996).
On August 6, 2012, Dr. Silverman completed a letter in which
he noted he has been Plaintiff’s primary-care provider since
August 2005.

Dr. Silverman opined Plaintiff’s

chronic pain makes him markedly limited in his
ability to concentrate and maintain a fully time
work effort. While he might be able to work on a
part-time basis, he would be severely limited. If
he were in a full-time work position . . . he
would miss more than two days per week . . . due
to chronic pain and/or the effects of medication
he takes for the pain.
Tr. 575-76.
The ALJ noted Dr. Silverman’s opinion was not supported by
his treatment notes.

For example, the treatment notes reflect

Plaintiff had normal strength, gait, and stance.
351, 501, 511, 524, 530, 533, 543.

Tr. 340, 342,

The ALJ also pointed out that

the treatment notes did not reflect any mental-status finding
13 - AMENDED OPINION AND ORDER

that supported Dr. Silverman’s opinion that Plaintiff was
markedly limited in his ability to concentrate, and Dr. Silverman
conducted only minimal mental-status examinations.

Tr. 343, 351,

356.
The ALJ also discounted Dr. Silverman’s opinion because it
was not supported by Plaintiff’s self-reports.

For example,

Plaintiff reported he did not have any limitation in his ability
to concentrate, to pay attention, to follow instructions, and to
finish what he started.

Tr. 255.

As noted, the record reflects

Plaintiff took classes for and completed his Masters Degree.
On this record the Court concludes the ALJ did not err when
he gave little weight to Dr. Silverman’s opinion because he
provided clear and convincing reasons based on substantial
evidence in the record for doing so.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 30th day of March, 2017.
/s/ Anna J. Brown

ANNA J. BROWN
United States District Judge
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