Ward v. Commissioner Social Security Administration

Filing 23

Opinion and Order regarding Social Security Complaint 1 : Ward's assignments of error cannot be sustained and the Commissioner's decision is affirmed. Signed on 3/29/17 by Judge Robert E. Jones. (ljb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ANTHONY RAY WARD,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Connnissioner
of Social Security,
Defendant.

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6:15-CV-02060-JO

OPINION AND ORDER

JONES,J.
Plaintiff Anthony Ward appeals the Connnissioner's decision denying his concurrent
applications for disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the
Connnissioner' s decision.
PRIOR PROCEEDINGS
Ward alleged disability due to migraines, pain in the back, neck, shoulder and knees, limited
reading and writing ability, and nose bleeds. Admin. R. 272. He initially alleged lifelong disability,
but, at his administrative hearing, amended the alleged onset date to January 1, 2010. Admin. R. 21,
71, 223, 234. He satisfied the insured status requirements of the Social Security Act through

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OPINION AND ORDER

September 30, 2014, and must establish that he was disabled on or before that date to prevail on his
Title II claim. Tidwell v. Apfel, 161F.3d599, 601 (9th Cir. 1998).
The ALJ applied the sequential disability determination process described in the regulations
and in Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The ALJ found that Ward's ability to work was
adversely affected by headaches, dyslexia, osteoartln·itis in the left knee, degenerative disc disease,
social phobia, learning disorder, and intermittent explosive disorder. Admin. R. 24. The ALJ found
that, despite these impairments, Ward retained the residual functional capacity ("RFC") to perform
the full range of light work. Admin. R. 26. The ALJ determined that Ward could not perform any
of his past relevant work, all of which involved medium or heavy exertion. Admin. R. 29-30. The
ALJ applied the Medical-Vocational Guidelines in 20 C.F.R. Pmi 404, Subpart P, Appendix 2 to
Ward's vocational factors of age, education, and RFC. These factors directed a finding of '.'not
disabled" under Rule 202.18 of the Medical-Vocational Guidelines. Admin. R. 30. The ALJ
concluded that Ward was not disabled within the meaning of the Social Security Act. Admin. R. 3031.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are suppo1ied by substantial evidence in the record as a whole.
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant
evidence that a reasonable person might accept as adequate to supp01i a conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the
evidence. Robbins v. Soc. Sec. Adm in., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the
court must consider the record as a whole, and uphold the Commissioner's factual findings that are

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OPINION AND ORDER

supp01ted by inferences reasonably drawn from the evidence even if another interpretation is also
rational. Robbins, 466 F.3d at 882; Batson v. Comm 'r ofSoc. Sec. Adm in., 359 F.3d 1190, 1193 (9th
Cir. 2004);Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
ASSIGNMENTS OF ERROR

The claimant bears the burden of showing that the ALJ erred and that any enor was harmful.
kfcLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Ward contends the ALJ improperly

discredited his subjective statements and discounted the opinions of two consultative examiners,
Judith Eckstein, Ph.D., a psychologist, and Anthony Glassman, M.D., a specialist in physical
medicine. Ward also contends the ALJ failed to properly develop the record regarding his mental
impairments. These enors, Ward argues, led the ALJ to assess his RFC in a manner that did not
reflect all of his functional limitations and to improperly apply the Medical-Vocational Guidelines.
DISCUSSION

I.

Credibility Determination
In his application papers, Ward alleged primarily physical impairments causing pain in his

back, neck and knees. Admin. R. 272. At the administrative hearing, he described his lawn care
business and said after mowing, he would feel tired and sore and would have to lie down. Admin.
R. 52, 67. He said he had frequent conflicts with his wife over finances. He said that he had quit
jobs because he could not get along with people and had been fired for having a bad attitude.
Admin. R. 68-72. Ward testified that he gets upset in crowds. Admin. R. 66.
The ALJ accepted that Ward's medically determinable impairments could reasonably be
expected to cause some degree of the symptoms he alleged.

Admin. R. 26. Under such

circumstances, anALJ must assess the credibility of the claimant's subjective statements regarding
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OPINION AND ORDER

the severity of symptoms. An adverse credibility determination must include specific findings
supported by substantial evidence and clear and convincing reasons. Carmickle v. Comm 'r, Soc. Sec.

Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir.
1996). The findings must be sufficiently specific to permit the reviewing comt to conclude that the
ALJ did not arbitrarily discredit the claimant's testimony. Tomasetti v. Astrue, 533 F.3d at 1039.
In assessing credibility, an ALJ must consider all the evidence in the case record, including
the objective medical evidence, the claimant's treatment history, medical opinions, daily activities,
work histo1y, the observations of third patties with knowledge of the claimant's functional
limitations, and any other evidence that bears on the consistency and veracity of the claimant's
statements. Tommasetti, 533 F3d at 1039; Smolen, 80 F3d at 1284; SSR 96-7p, 1996 WL 374186,
at *5.
The ALJ' s decision demonstrates that he considered all the evidence relating to the proper
factors for evaluating credibility. The ALJ observed that the objective medical evidence did not
support the severity of limitation Ward alleged. Admin. R. 28. Lack of suppo1t in the objective
medical evidence for a claimant's subjective claims regarding the severity of symptoms cannot be
the sole basis for discrediting the claims, but is a proper factor in the credibility analysis to the extent
it shows whether the claims are consistent with the record as a whole. Lingenfelter v. Astrue, 504
F.3d 1028, 1040 (9th Cir. 2007); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Thomas v.

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
As the ALJ found, the record contains little objective medical evidence of any condition that
would produce chronic disabling pain. Before the alleged onset of Ward's disability, diagnostic
imaging showed osteoaithritic changes in his left knee but ligaments were intact and he had no

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OPINION AND ORDER

abn01mality of the meniscus. Admin. R. 372. In October 2011, Ward sought treatmentfor knee and
ankle pain. His physical examination was unremarkable, except for slight swelling and tenderness
to palpation. Diagnostic imaging was also negative and the doctor diagnosed a strain. Admin. R.
353-56. In April 2012, diagnostic imaging of the spine showed no abnormalities in the lumbar
region and stable degenerative changes in the thoracic region, consistent with earlier imaging from
2009. Admin. R. 407. In February 2013, Ward had a physical examination while establishing care
with a new clinic. He complained of stiffness and pain in the hands and tenderness over the lumbar
muscles. His ranges of motion, muscle strength and tone, gait, station, and neurological exam were
all nonnal. Admin. R. 441. In July 2013, a physical examination was normal except for diffuse
tenderness over the lumbar spine. Admin. R. 430. This absence ofremarkable clinical findings and
objective evidence from imaging supports the ALJ's statement that the objective medical evidence
did not support the severity of limitation Ward alleged. Admin. R. 28.
The ALJ considered Ward's treatment hist01y, which included long periods during which he
sought no treatment. An inadequately explained failure to seek treatment for allegedly debilitating
symptoms may cast doubt on the claimant's sincerity. Flaten v. Sec '.Y ofHealth & Human Serv., 44
F.3d 1453, 1464 (9th Cir. 1995); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1993); Bunnell v.

Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Notably, although Ward alleged he became disabled
on Janumy 1, 2010, he did not go to the doctor thereafter until July 2010, when he sought treatment
for acute bronchitis. Admin. R. 357. He did not seek treatment for any of his allegedly disabling
conditions until late the following year. When a claimant alleges a disabling condition, but does not
seek treatment for months after the onset, it supports an adverse inference as to the credibility of the
allegation. Bruton v. lvfassanari, 268 F.3d 824, 828 (9'h Cir. 2001).

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The treatment record reflects that Ward rarely sought treatment for his alleged physical
impairments. For example, in October 2011, Ward sought treatment for an acute strain of the left
knee resulting from overexertion while working two jobs. Admiil. R. 28, 353-56. Otherwise, he did
not require treatment for his allegedly disabling back, neck, and knee pain. He reportedly got along
with over the counter NSAIDs. His conservative treatment histmy casts futiher doubt on his claim
of debilitating pain. Parra v. Ash·ue, 481 F.3d 742, 750-51 (9th Cir. 2007). Similarly, the ALJ
pointed out that, despite his allegation of disabling mental impai1ments, Ward did not seek mental
health treatment or receive medications or other therapy to alleviate the debilitating symptoms he
claimed. Admin. R. 27. Ward's failure to seek treatment cannot reasonably be attributed to a lack
of funds because he did get treatment for routine health problems, such as when he got acute viral
bronchitis, cut his thumb, and developed a lipoma on his neck. Admin. R. 357, 359-60, 400, 437.
The ALJ also considered Ward's reported daily activities and work histmy. The ALJ placed
great significance on Ward's self employment throughout the period for which he claims disability.
Admin. R. 27-28. Ward owns, operates, and is the sole employee ofa lawn care business. He said
he had 20 customers for whom he did yard work on a regular basis. He maintained a pick up truck,
mowers and other equipment for the business. He said he kept a home office with a personal
computer he used for keeping track of customer accounts and business expenses. He prepared
estimates for prospective jobs and handled billing and advertising for the business. Ward did not
have enough customers to work full time at his business, and his activities are therefore not
equivalent to full time work. Nonetheless, the ALJ reasonably found that Ward's self employment
demonstrated he was not as limited physically as he alleged and had no mental impaitment that
precluded basic work activities. Admin. R. 27-28.

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The ALJ considered the third party lay witness repo1i supplied by Ward's mother. Admin.
R. 29, 279-285. Mrs. Ward said he had suffered back pain from scoliosis since his teenage years and
that this condition was worsening with age. She said Ward suffered back pain and migraines and
became frustrated and irritable over his inability to control the pain. Despite this, however, she
described a wide range of self care and daily activities that the ALJ reasonably found inconsistent
with total disability. Admin. R. 29.
The ALJ also pointed out that Ward received unemployment benefits during 2011, and
believed this indicated that Ward was both available for and capable of working. Admin. R. 26.
Ward objects that applying for unemployment benefits does not require him to hold himself out as
able to perform full time work. I accept Ward's argument and find this a less than convincing reason
to discount his credibility. The remainder of the ALJ' s analysis is sufficiently specific to satisfy me
that he did not arbitrarily discount Ward's subjective statements. The reasoning is clear and his
findings are supported by substantial evidence in the record as a whole.

II.

Medical Opinions
Ward contends the ALJ improperly discounted the opinions of two physicians who performed

consultative evaluations at the request of the agency.
In May 2012, Dr. Eckstein administered a psychodiagnostic evaluation to assess the
significance of Ward's reported low education level, dyslexia, and difficulty managing anger.
Adm in. R. 391. Dr. Eckstein did not treat Ward and noted that he had not received any mental health
treatment. Dr. Eckstein found that Ward demonstrated no behavioral abnormalities. His thought
process was logical and coherent and he was fully oriented. He made appropriate eye contact
without abnonnalities of speech or motor movement. Admin. R. 393. Dr. Eckstein administered

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OPINION AND ORDER

cognitive tasks which suggested that he had a weak fund ofinfmmation, slightly below average short
term memory, only basic arithmetic skills, and a concrete thinking style. Admin. R. 394. Dr.
Eckstein opined that Ward's chronic pain and difficulty with anger were lifelong issues, predating
the alleged onset of disability. She opined that Ward would have difficulty remembering instructions
unless they were simple and repetitive and would do best with tasks that are rote and require little
contact with others. Admin. R. 395.
In Janumy 2014, without having seen Ward in the interim, Dr. Eckstein completed a mental
residual functional capacity worksheet indicating Ward would have significant limitations in the
ability to understand and remember detailed instructions, to carry out short, simple instructions, and
to sustain an ordinmy work routine without special supervision. Admin. R. 413-15. She concluded
that Ward would be unable to perform competitive work 80% of the time. Admin. R. 416.
The ALJ gave Dr. Eckstein's opinion significantly reduced weight in reaching his decision.
Admin. R. 27-28. An ALJ may discount the opinion of an examining doctor by making findings
setting f01ih specific, legitimate reasons suppmied by substantial evidence in the record as a whole.
Thomas v. Barnhart, 278 f.3d at 957; }vfaga/lanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). An
uncontradicted opinion may be discounted for clear and convincing reasons. Thomas, 278 F3d at
956-57; Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). An ALJ may discount an
examining doctors opinion, for example, if the claimant's level of activity is inconsistent with the
restrictions in the opinion. See e.g. Rollins v.. Jvfassanari, 261 F.3d 853, 856 (9th Cir. 2001).
Here, the ALJ discounted Dr. Eckstein' s opinion because Ward's work history demonstrated
that he could perfo1m activities Dr. Eckstein said he could not. Admin. R. 28. The ALJ reasonably
found that Ward's ability to independently run his own lawn care business, including such tasks as

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OPINION AND ORDER

confening with customers, setting up, coordinating, and scheduling jobs, keeping track of expenses
and customer accounts, billing, advertising, and so forth, was inconsistent with Dr. Eckstein's
opinion that he had significant limitations in the ability to understand, remember, and cany out sho1i,
simple instructions and to sustain an ordinmy work routine without special supervision. His work
involved more than rote tasks as well as interactions with his customers. Admin. R. 28.
Ward contends his lawn care business is not as demanding as theALJ described, but the ALJ
relied on Ward's own testimony to describe the activities involved. In any event, the ALJ's
reasoning is based on rational inferences drawn from substantial evidence in the record. Even if the
record could be interpreted differently, in a manner more favorable to Ward, the court must uphold
an ALJ' s factual findings that are supported by inferences reasonably drawn from substantial
evidence in the record. Batson, 359 F.3d at 1193; Andrews, 53 F.3d at 1039-40.
Ward also contends the ALJ failed to fully develop the record because he denied the request
by Ward's attorney for IQ testing. An ALJ has a duty to fully and fairly develop the administrative
record.

This duty, however, is triggered when fmiher development is necessmy to resolve

ambiguities or when the ALJ makes a finding that the record is inadequate to allow for proper
evaluation of the evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). These
conditions are not present here.
Ward's attorney based his request for IQ testing on Dr. Eckstein's initial report in which she
said that, "overall, Ward appears to be low average in his general cognitive function, likely to fall
in the borderline range of no1mal. Intellectual assessment would be info1mative in this regard."
Admin. R. 395. The ALJ found that Ward's ability to perform the activities required in his self
employment showed he had adequate cognitive abilities to perform basic work activities. In

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OPINION AND ORDER

addition, Dr. Eckstein opined that Ward's cognitive limitations were lifelong, and his work history
showed that cognitive deficits did not prevent him from performing his past relevant work. In light
of this evidence of Ward's cognitive functioning, the ALJ found it unnecessaiy to determine
precisely where he fell in the low average range of intellectual function. The evidence was neither
ambiguous in any significant way nor inadequate for the purposes of the ALJ' s decision. He
therefore declined the request for additional f01mal testing. Admin. R. 27. I find no error in the
ALJ' s development of the record.
In April 2012, Dr. Glassman performed a complete musculoskeletal evaluation focusing on
Ward's complaints of migraines, knee pain, low back pain, and neck pain. Admin. R. 382. On his
physical examination, Dr. Glassman found that Ward had full strength in all muscle groups, n01mal
gait, station, reflexes and full ranges of motion. He opined that Ward was capable of work at the
medium range of exertion, and was perfo1ming such work in his lawn mowing business. He said
Ward's ability to stand or walk was limited to four hours a day due to osteoarthritis in the left knee.
Admin. R. 387. The ALJ gave Dr. Glassman's opinion significant weight, but did not include a
restriction on standing or walking in his assessment of Ward's RFC. Admin. R. 26, 28.
The Commissioner concedes that the ALJ did not give adequate reasons for rejecting Dr.
Glassman's opinion regarding Wai·d's limitation in standing and walking, but argues that the enor
was haimless. An error is harmless if the ALJ' s dete1mination remains supported despite the enor.

Carmickle v. Comm'r, 533 F.3d at 1162-63 & n. 4. At a minimum, the claimant must show "a
substantial likelihood of prejudice." Ludwig v. Astrue, 681 F .3d 1047, 1054 (9th Cir. 2012) quoting

1vfcleod, 640 F.3d at 888. Evaluation of enor for haimlessness is an exercise ofjudgment based on
the circumstances of each case, including consideration of"the likelihood that the result would have

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OPINION AND ORDER

been different" had there not been enor. Ludwig, 681 F.3d at 1054 quoting Shinseki v. Sanders, 555
U.S. 396, 411 (2009).
Having exercised my judgment, I conclude that there was no prejudice from the ALJ's error
in the circumstances of this case. If the ALJ had included a limitation of standing and walking for
no more than four hours per day in Ward's RFC, it would have precluded him from performing the
full range of light work. It would not, however, preclude him from performing sedentary work.
Application of Ward's vocational factors of age, education, work experience and an RFC for
sedentaiy work would produce a finding of"not disabled" under rules 201.23 tlu·ough 201.25 of the
Medical Vocational Guidelines in Appendix 2 of20 C.F.R. Part 404, Subpart P. Accordingly, there
is no likelihood that the outcome would have been different had there not been enor and Ward has
failed to show a likelihood of prejudice.

III.

Residual Functional Capacity
Ward contends the ALJ's RFC assessment was faulty because it did not include the

limitations described in his subjective statements, the opinion ofDr. Eckstein, and the opinion ofDr.
Glassman. For reasons already given, I find no harmful error in the ALJ's evaluation of that
evidence. An ALJ need not include limitations based on properly discounted evidence. StubbsDanielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008); Batson, 359 F.3d at 1197.

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CONCLUSION

Based on the foregoing, Ward's assignments of error cannot be sustained and the
Commissioner's decision is AFFIRMED.
DATED this ~ay of March, 2017.

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OPINION AND ORDER