Thomas Boyes v. Louis W. Sullivan, M.D., Secretary of Health & Human Services

891 F.2d 224 28 Soc.Sec.Rep.Ser. 37 Thomas BOYES, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health & Human Services, * Defendant-Appellee. No. 88-15342. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 3, 1989. Decided Dec. 7, 1989. As Amended Mar. 6, 1990. Alan Bergman, Mendocino, Cal., for plaintiff-appellant. Dennis J. Mulshine, Asst. Regional Counsel for Health & Human Services, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before HUG, FARRIS and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: 1 Thomas Boyes appeals from the denial of disability benefits under the Social Security Act, 42 U.S.C. § 301 et seq. (1980). We have jurisdiction pursuant to 42 U.S.C. § 405 (g) (1980). Boyes contends that the Administrative Law Judge ("ALJ") improperly disregarded the opinion of Dr. Mary Perry Miller, Boyes' treating physician, which concluded that he was disabled. We agree. The ALJ does not set forth specific, legitimate reasons for disregarding the treating physician's opinion, nor does he offer clear and convincing evidence that…

concurring:

Although benefits may be improperly awarded, I am compelled to concur in the result. The AU failed to discharge his obligation to explain his decision.

The treating physician concluded, among other things, that Boyes was not able to work for at least a twelve month period. Whether to award benefits is not the sole province of the treating physician. Whether benefits will be awarded is a legal decision to be made initially by the agency. The AU may then reject the agency finding, based upon all of the evidence, including the treating physician’s opinion.

To disregard the treating physician’s un-contradicted opinion of disability, the AU must point to clear and convincing reasons to support his contrary conclusion. Magellanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). If the treating physician’s opinion is contested by opinions of other testifying doctors a lower standard applies. The ALJ *230 may disregard it upon a showing of specific, legitimate reasons based on evidence in the record. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). In either case, the AU is precluded from disregarding the treating physician’s opinion as “not supported by the weight of the…

Thomas Boyes appeals from the denial of disability benefits under the Social Security Act, 42 U.S.C. § 301 et seq. (1980). We have jurisdiction pursuant to 42 U.S.C. § 405 (g) (1980). Boyes contends that the Administrative Law Judge (“AU”) improperly disregarded the opinion of Dr. Mary Perry Miller, Boyes’ treating physician, which concluded that he was disabled. We agree. The AU does not set forth specific, legitimate reasons for disregarding the treating physician’s opinion, nor does he offer clear and convincing evidence that supports his decision to do so. We reverse and remand for payment of benefits.

STATEMENT OF FACTS

Thomas Boyes was born on January 9, 1949, and is currently forty years old. He earned a high school equivalency degree *226 (GED) in 1983, and after being honorably discharged from the Army, he held various jobs, including cashier, salesman, tire inspector, and hotel manager. 1 All of these jobs involved some contact with other people. In 1984, Boyes suffered severe injuries to his jaw as a result of a beating which occurred when he was in jail. His jaw was wired for about five months, and additional complications subsequently occurred. However, recent…