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. ) 

JONES,J. 

6:15-CV-02060-JO 

OPINION AND ORDER 

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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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. 30-

31. 

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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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 of Soc. 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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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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Case 6:15-cv-02060-JO Document 23 Filed 03/29/17 Page 4 of 12
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 of Health & 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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Case 6:15-cv-02060-JO Document 23 Filed 03/29/17 Page 7 of 12
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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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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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. As true, 681 F .3d 104 7, 1054 (9th Cir. 2012) quoting 

1vfcleod, 640 F.3d at 888. Evaluation of enor for haimlessness is an exercise of judgment based on 

the circumstances of each case, including consideration of"the likelihood that the result would have 

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Case 6:15-cv-02060-JO Document 23 Filed 03/29/17 Page 10 of 12
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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