Darwin v. Colvin

Full title: JOHN DARWIN, IV, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of…

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Apr 30, 2015

2:14-cv-0740 AC (E.D. Cal. Apr. 30, 2015)

Opinion

JOHN DARWIN, IV, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. No. 2:14-cv-0740 AC United States District Court, E.D. California. April 30, 2015

          ORDER

          ALLISON CLAIRE, Magistrate Judge.

         Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 42 U.S.C. §§ 401-34, and for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383f.

         The parties have filed cross-motions for summary judgment and fully briefed the matter. See ECF Nos. 17, 21 & 22. However, plaintiff's opposition to the Commissioner's cross-motion for summary judgment raises, for the first time, a challenge to the Commissioner's reliance on Dr. Frank Chen, a consultative examiner. See ECF No. 22. Plaintiff claims that Dr. Chen was removed from a state panel of acceptable consultative examiners, for malfeasance related to his work as a consultative examiner. Id. at 1-2. Plaintiff further claims that the Commissioner may be "reviewing all adverse decisions involving examinations by Dr. Frank Chen." Id. at 2. Plaintiff further indicates that the Commissioner may be considering some form of relief "to those persons whose claims were denied on the strength (or absence thereof) of his [Dr. Chen's] medical opinions." Id.

         Accordingly, IT IS HEREBY ORDERED that defendant shall file a Reply addressing plaintiff's newly raised issue regarding Dr. Chen - particularly the assertion that the Commissioner may be reviewing the underlying decision here, and/or considering providing some form of relief to plaintiff¹ - no later than May 21, 2015, at which time the matter will be taken under submission.

1 The court is aware of Hart v. Colvin, 3:15-cv-00623 JST (N.D. Cal., filed Feb. 2, 2015), a purported class action lawsuit addressing this issue. The court is aware that the Commissioner has moved to dismiss that lawsuit for lack of subject matter jurisdiction. There is no need for the Commissioner to brief the court on that case, unless the Commissioner believes that such briefing is warranted.