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Tillinghast v. Colvin

United States District Court, D. Oregon

August 5, 2014

VICTOR J. TILLINGHAST, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

OPINION AND ORDER

MICHAEL J. McSHANE, District Judge.

Plaintiff Victor J. Tillinghast brings this action for judicial review of a final decision of the Commissioner of Social Security denying his application for disability insurance benefits (DIB) and supplemental security income payments (SSI) under Titles II and XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). The issue before this Court is whether the ALJ erred in evaluating the opinion of examining psychologist, Dr. Tongue. Because the ALJ articulated sufficient reasons supported by substantial evidence in the record for partially rejecting Dr. Tongue's opinion, the Commissioner's decision is AFFIRMED.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff applied for DIB and SSI on January 12, 2004, alleging disability since April 2, 2002. Tr. 47. These claims were denied initially and upon reconsideration. Tr. 47. Plaintiff timely requested a hearing before an administrative law judge (ALJ), and appeared before the Honorable Tim Terrill on December 16, 2005. Tr. 239-71, 306. ALJ Terrill denied plaintiff's claims by written decision dated March 18, 2006. Tr. 47-52.

Plaintiff then filed new applications seeking DIB and SSI, alleging disability since April 2, 2002 (later amended to March 19, 2006). Tr. 106, 276, 306. These claims were denied initially and upon reconsideration. Plaintiff timely requested a hearing and appeared before the Honorable Riley Atkins on January 13, 2010. Tr. 272-302. ALJ Atkins denied plaintiff's claim by written decision dated February 4, 2010. Tr. 15-22. Plaintiff sought review from the Appeals Council, which was subsequently denied. Tr. 56-58. Plaintiff appealed the matter to this Court, and on September 29, 2011, this Court remanded the matter for further proceedings. Tr. 321-41 (Tillinghast v. Astrue, No. 3:10-CV-1113-MA, 2011 WL 4625689, at *8 (D. Or. Sept. 29, 2011)). Pursuant to this remand, the ALJ was instructed to: "include a further medical examination of plaintiff's knees, and a psychological evaluation of plaintiff's ability to maintain concentration, persistence, and pace in the workplace." Tr. 340.

Plaintiff appeared a second time before ALJ Atkins on December 26, 2012. Tr. 453-76. ALJ Atkins denied plaintiff's claim by written decision dated February 6, 2013. Tr. 306-17. Plaintiff sought review from the Appeals Council, which was subsequently denied, thus rendering the ALJ's decision final. Plaintiff now seeks judicial review.

Plaintiff, born on August 3, 1955, tr. 169, 276, obtained a bachelor of arts in theology, tr. 277, and worked most recently as a senior operations technician for Wells Fargo (1995-2002), tr. 101, 134, 472. Plaintiff was fifty at the time of alleged disability onset, tr. 169, 276, and fiftyseven at the time of the most recent administrative hearing, tr. 467.[1] Plaintiff alleges disability due to osteoarthritis of the right knee and degenerative disk disease of the cervical spine.[2] See tr. 118, 309.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence on the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

DISCUSSION

The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id.

Plaintiff contends that the ALJ erred in evaluating the opinion of examining psychologist, Dr. Tongue. Pl.'s Br. 6-11, ECF No. 17. Defendant, in response, argues that the ALJ provided specific and legitimate reasons to reject Dr. Tongue's opinion. Def.'s Br. 5-8, ECF No. 18. This Court looks to the record.

In May 2012, Dr. Tongue met with plaintiff and administered the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS).[3] See tr. 375-78. Based on the RBANS findings, Dr. Tongue diagnosed plaintiff with Cognitive disorder NOS[4] and major depression recurrent-moderate, without psychotic features.[5] Tr. 378. Dr. Tongue also indicated that plaintiff's "cognitive difficulties would suggest that his capacity for maintaining the concentration, persistence, and pace necessary for employment would be considerably affected." Tr. 378.

Dr. Tongue, having met with plaintiff a single time, is not a treating physician. See, e.g., Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir. 2003) (indicating that an ongoing treatment relationship with a claimant is a key factor in determining whether a physician is treating). "To reject his opinion, the ALJ had to give clear and convincing reasons." Reginnitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (citation omitted). "Even if contradicted by another doctor, the opinion of an examining doctor can be rejected only for specific and legitimate reasons that are supported by substantial evidence in the record." Id. (citation omitted). In according ...


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