Filed: Nov. 14, 2018
Latest Update: Nov. 14, 2018
Summary: ORDER REQUIRING PARTIES TO FILE SUPPLEMENTAL BRIEFING STANLEY A. BOONE , Magistrate Judge . Plaintiff Timothy Sean Vincent ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits pursuant to the Social Security Act. On September 13, 2018, Plaintiff filed an opening brief alleging, as relevant here, that the Administrative Law Judge failed to provide clear and convincing rea
Summary: ORDER REQUIRING PARTIES TO FILE SUPPLEMENTAL BRIEFING STANLEY A. BOONE , Magistrate Judge . Plaintiff Timothy Sean Vincent ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits pursuant to the Social Security Act. On September 13, 2018, Plaintiff filed an opening brief alleging, as relevant here, that the Administrative Law Judge failed to provide clear and convincing reas..
More
ORDER REQUIRING PARTIES TO FILE SUPPLEMENTAL BRIEFING
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Timothy Sean Vincent ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits pursuant to the Social Security Act. On September 13, 2018, Plaintiff filed an opening brief alleging, as relevant here, that the Administrative Law Judge failed to provide clear and convincing reasons to reject the opinion of his treating physician. (ECF No. 16.) Defendant filed an opposition on October 25, 2018, countering that Plaintiff has misstated the law and since the treating physician's opinion was contradicted by the opinions of the agency physicians, the ALJ was only required to provide specific and legitimate reasons to reject the treating physician's opinion. (ECF No. 19.) On November 9, 2018, Plaintiff filed a reply citing Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) and Winans v. Bowen, 853 F.2d 643 (9th Cir. 1987), in arguing that the clear and convincing standard would apply.
Where a treating physician's opinion is not contradicted by another physician, the ALJ can only reject the opinion by providing clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). However, "[i]f a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing 20 C.F.R. § 404.1527(d)(3)). The Court has recently noted that it is seeing an increasing number of cases in which the agency has not obtained the opinion of a consultative examiner. In such situations, there will generally be only a treating physician's opinion and the contrary opinion of the agency physicians. The Court has considered such opinions contradictory and applied the specific and legitimate reasons standard. Based upon review of the cases cited by Plaintiff, the Court shall require the parties to fully brief the issue of the standard to apply in this situation.
Accordingly, IT IS HEREBY ORDERED that:
1. The parties shall each file a supplemental brief addressing whether the "clear and convincing" or "specific and legitimate" reason standard would apply where the treating physician's opinion is only contradicted by the opinions of the agency or nonexamining physicians on or before November 28, 2018; and
2. The parties shall file a response to supplemental briefing on or before December 12, 2018.
IT IS SO ORDERED.
