Bunnell v. Sullivan

947 F.2d 341, 1991 WL 191634

Opinions

DAVID R. THOMPSON, Circuit Judge,

joined by TANG, SCHROEDER, FLETCHER, PREGERSON, REINHARDT and BEEZER, Circuit Judges:

INTRODUCTION

We granted a rehearing en banc in Rice v. Sullivan, 912 F.2d 1076 (9th Cir.1990), and Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir.1990), to determine the appropriate standard for evaluating subjective complaints of pain in Social Security disability cases. Bunnell v. Sullivan, 925 F.2d 1236 (9th Cir.1991). We conclude the standard enunciated in Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986), is a proper interpretation of the relevant law, and thus we overrule the concurring opinion in Bates v. Sullivan, 894 F.2d 1059 (9th Cir.1990), which held to the contrary. Relying on the Bates concurrence, the Rice and Bunnell panels rejected the claimants’ contentions that the administrative law judge (“AU”) in each of their cases applied an erroneous standard to evaluate their pain. Accordingly, we remand both cases to the district courts for remand to the Secretary for a determination of the claimants’ disabilities consistent with this opinion.

FACTS AND PROCEEDINGS

The panels in Rice and Bunnell sufficiently set forth the facts of each case. See Rice, 912 F.2d at 1078-80; Bunnell, 912 F.2d at 1150-51. We only briefly summarize those facts here.

The Rice Case

Arthur J. Rice submitted medical findings that he suffers from fibrositis. Apparently, the diagnosis of fibrositis involves a process of exclusion and a “testing of certain ‘focal tender points’ on the body for acute tenderness.” See Preston v. Secretary of Health and Human Servs., 854 F.2d 815, 817-18 (6th Cir.1988) (describing fibrositis). Fibrositis can cause muscle and musculoskeletal pain. Id. at 817.

Rice filed an application for Title II disability insurance benefits, complaining of severe and constant pain in his shoulders, back, and legs, as well as temporal headaches. Dr. Gell, at the request of the Secretary of Health and Human Services (“Secretary”), examined Rice. Dr. Gell concluded Rice was suffering from fibrosi-tis, but noted “[m]ost patients are not totally disabled with this diagnosis.”

The first AU found that Rice was suffering from a “severe impairment,” but rejected Rice’s testimony concerning his pain because the AU found Rice's testimony was “ ‘not fully credible and [did] not establish the existence of the disabling pain alleged in light of the objective medical evidence. [Rieej’s allegation of pain [was] not consistent with the medical signs and findings.’ ” Rice, 912 F.2d at 1079. A second ALJ also rejected Rice’s claim after reconsidering Rice’s claim in light of new evidence. This AU discredited Rice’s complaints of disabling pain because they were not “justified after thorough and repeated medical evaluations in all relevant areas of specialty.”

The Bunnell Case

Marcia C. Bunnell applied for supplemental security income benefits under Title XVI. Bunnell produced medical evidence that she suffers from multiple hereditary exostoses. “Exostoses are bony growths projecting outward from the surface of a bone, characteristically capped by cartilage ... resultpng] in the development of val-gus, i.e., bent outward, ankles.” Bunnell, 912 F.2d at 1150. Bunnell testified she suffered back pain “all day and all night,” which prevented her from sitting “for prolonged periods” or being in a “stationary position for more than 15 to 20 minutes.” The AU found Bunnell’s claim of disabling pain to be not credible because it was not “supported by the medical evidence of record.” Id. at 1154.

DISCUSSION

In both Rice and Bunnell, the AUs disregarded the claimants’ allegations of disabling pain because the claimants failed to present objective medical findings to fully corroborate the severity of pain alleged. Relying on the concurring opinion in Bates, the Rice and Bunnell panels upheld the Secretary’s denial of disability benefits. We conclude the concurring opinion in Bates misconstrued the relevant law, and thus erroneously rejected the standard for evaluating pain as adopted by this circuit in Cotton.

Three competing standards have evolved for evaluating allegations of disabling pain. One standard is the standard proposed by Senators Levin and Cohen in a bill which was defeated when Congress adopted the 1984 Social Security Disability Benefits Reform Act discussed below. This standard (the “Levin-Cohen standard”) would allow a finding of disability without requiring the claimant to produce medical evidence of an underlying impairment causing the pain. See 130 Cong.Rec. S6214 (daily ed. May 22, 1984) (statement of Senator Cohen). This standard has been described as permitting a finding of disability based solely on subjective complaints of disabling pain. See id.; see also Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1213-14 (11th Cir.1991) (describing solely subjective standard). The Levin-Cohen standard has never been embraced by Congress, the Secretary, or this circuit.

Another standard for evaluating pain in Social Security disability cases is the standard we articulated in Cotton. This standard (the “Cotton standard”) requires the claimant to produce medical evidence of an underlying impairment which is reasonably likely to be the cause of the alleged pain. Cotton, 799 F.2d at 1407. When this evidence is produced, the Cotton standard does not require medical findings that support the severity of pain and, thus, the adjudicator may not discredit the claimant’s allegations of the severity of pain solely on the ground that the allegations are unsupported by objective medical evidence. Id.

The Bates concurrence proclaimed yet a third standard. This standard not only requires objective medical evidence of the underlying impairment, but also requires objective medical evidence to corroborate the severity of the pain alleged. Bates, 894 F.2d at 1072. We reject this standard because it is inconsistent with the relevant statutory language, the legislative history, the Secretary’s regulations, the Secretary’s interpretation of the regulations, and our pre-Bates case law.

In 1984, Congress enacted the Social Security Disability Benefits Reform Act, Pub.L. No. 98-460, 98 Stat. 1794 (1984) (the “1984 Act”). Among other objectives, Congress intended the 1984 Act to clarify the law regarding eligibility for disability benefits. Prior to its enactment, the statutory section governing the determination of a claimant’s disability, 42 U.S.C. § 423(d)(1)(A), (d)(3) (1982), did not address the appropriate standard for evaluating pain.¹

In the 1984 Act, Congress amended section 423 and set forth a temporary standard for evaluating a claimant’s subjective allegations of disabling pain. 42 U.S.C. § 423(d)(5)(A) (1988) (the “1984 amendment”). This standard was to govern disability claims until January 1, 1987, pending a study by the Secretary’s “Commission on the Evaluation of Pain.” H.R.Conf. Rep. No. 1039, 98th Cong., 2d Sess. 28-29 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 3086-87. When the 1984 amendment was adopted, Congress intended to consider at a later date further legislation to clarify the standard for evaluating pain after reviewing the anticipated Commission report. S.Rep. No. 466, 98th Cong., 2d Sess. 24 (1984) (“S.Rep. No. 466”). Congress has yet to promulgate further legislation.

Pursuant to the 1984 amendment, a claimant will not be considered disabled based solely on subjective complaints of pain. The claimant must produce objective medical evidence of an underlying impairment “which could reasonably be expected to produce the pain or other symptoms alleged....” 42 U.S.C. § 423(d)(5)(A) (1988). As amended, subsection 423(d)(5)(A) reads in part:

An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require. An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.

Id.

Congress’ primary purpose in enacting the 1984 Act and amending section 423 was to promote a national, uniform standard for the evaluation of pain and to eliminate inconsistencies in the standard as applied by various levels of adjudicators. S.Rep. No. 466 at 1; see also id. at 23 (“Congress has indicated that it attaches high importance to the administration of the disability program with a high degree of national uniformity.”). The House Report notes concern that “a fragmented standard is now in effect for using subjective evidence of pain, depending on whether the beneficary [sic] has pursued his claim through the AU or district court level.” ² H.R.Rep. No. 618, 98th Cong., 2d Sess. 13, reprinted in 1984 U.S.Code Cong. & Admin.News 3051. At the same time, Congress recognized the inability of medical science to objectively verify the extent of pain experienced by an individual. See id. If Congress adopted a purely objective standard, truly disabled persons would be denied benefits. See id.

To balance these considerations, Congress used language in the 1984 amendment similar to language in the Secretary’s regulations. See S.Rep. No. 466 at 24; 20 C.F.R. §§ 404.1529 and 416.929 (1983). These regulations require a claimant to present medical findings establishing an impairment. Once the claimant satisfies this prerequisite, the adjudicator must then consider the claimant’s alleged severity of pain. Sections 404.1529 and 416.929 read in full:

If you have a physical or mental impairment, you may have symptoms (like pain, shortness of breath, weakness or nervousness). We consider all your symptoms, including pain, and the extent to which signs and laboratory findings confirm these symptoms. The effects of all symptoms, including severe and prolonged pain, must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptom. We will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could be reasonably expected to produce these symptoms.

The Secretary’s policy was clarified by the settlement agreement in Polaski v. Heckler, 751 F.2d 943 (8th Cir.1984), vacated on other grounds, 476 U.S. 1167, 106 S.Ct. 2885, 90 L.Ed.2d 974 (1986). See Luna v. Bowen, 834 F.2d 161, 165 (10th Cir.1987). In this settlement agreement, the Secretary clearly stated that objective medical findings need not support the severity of pain alleged:

Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone_ [Djirect medical evi-

dence of the cause and effect relationship between the impairment and the degree of claimant’s subjective complaints need not be produced.... The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints....

Luna, 834 F.2d at 165 (quoting Polaski, 751 F.2d at 948).

Our task in interpreting the 1984 amendment and the Secretary’s regulations is to determine the nexus intended by Congress between the objective medical findings establishing an impairment and the severity of the alleged pain. See Luna, 834 F.2d at 164. In Cotton, we concluded “ ‘Congress clearly meant that so long as the pain is associated with a clinically demonstrated impairment, credible pain testimony should contribute to a determination of disability.’ ” Cotton, 799 F.2d at 1407 (quoting Howard v. Heckler, 782 F.2d 1484, 1488 n. 4 (9th Cir.1986)). We subsequently applied this standard in Varney v. Secretary of Health and Human Servs., 846 F.2d 581, 583-84 (9th Cir.1988), and Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9th Cir.1987). Accordingly, under the Cotton-Vamey-Gamer precedent, once the claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant’s subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain. Cotton, 799 F.2d at 1407. Further, although an adjudicator may find the claimant’s allegations of severity to be not credible, the adjudicator must specifically make findings which support this conclusion. Id.

These findings, properly supported by the record, must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did not “arbitrarily discredit a claimant’s testimony regarding pain.” Elam, 921 F.2d at 1215. As we have previously recognized, a reviewing court should not be forced to speculate as to the grounds for an adjudicator’s rejection of a claimant’s allegations of disabling pain. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). “The failure of AUs to make [specific] findings in disability cases is among the principal causes of delay and uncertainty in this area of the law.” Id. (quoting Chiappa v. Secretary of Dep’t of HEW, 497 F.Supp. 356, 358 (S.D.N.Y.1980)).

To assist AUs in making the required findings, the Secretary issued Social Security Ruling (“SSR”) 88-13.³ Consistent with the 1984 amendment, the Secretary’s regulations, and our case law, SSR 88-13 does not require medical findings to corroborate the severity of alleged pain.⁴ Once the claimant establishes a medical impairment reasonably likely to be the cause of the pain, the Secretary directs the AU to consider “all of the available evidence” because the Secretary recognizes that “pain'is subjective and not susceptible to measurement by reliable techniques.” SSR 88-13.

SSR 88-13 lists a number of factors an adjudicator must consider to determine the credibility of the claimant’s allegations of disabling pain. These factors are:

1.The nature, location, onset, duration, frequency, radiation, and intensity of any pain;

2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);

3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;

4. Treatment, other than medication, for relief of pain;

5. Functional restrictions; and

6. The claimant’s daily activities.

Id.

The SSR 88-13 factors ensure that the determination of disability is not a wholly subjective process, turning solely on the identity of the adjudicator. See Luna, 834 F.2d at 165. For instance, if the claimant engages in numerous daily activities involving skills that could be transferred to the workplace, an adjudicator may discredit the claimant’s allegations upon making specific findings relating to the claimant’s daily activities. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). Another relevant factor may be “unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.” Id. An adjudicator may also use “ordinary techniques of credibility evaluation” to test a claimant’s credibility. Id. at 604 n. 5. So long as the adjudicator makes specific findings that are supported by the record, the adjudicator may discredit the claimant’s allegations based on inconsistencies in the testimony or on relevant character evidence. But the adjudicator may not discredit a claimant’s testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence.

The reason for this is clear. If we interpreted the 1984 amendment and the regulations to require medical evidence to support the degree of pain, we “would render meaningless” the requirement that an adjudicator must consider all relevant evidence. Luna, 834 F.2d at 165. If an adjudicator could reject a claim for disability simply because a claimant fails to produce medical evidence supporting the severity of the pain, there would be no reason for an adjudicator to consider anything other than medical findings. We rejected this more restrictive standard, because, clearly, “Congress did not intend to render the claimant’s pain testimony irrelevant.” Cotton, 799 F.2d at 1407.

In eschewing the Cotton standard, the Bates concurrence required objective medical evidence to support that for which it is quite possible no objective medical evidence can be produced. “[Pjain is a completely subjective phenomenon” and “cannot be objectively verified or measured.” Fair, 885 F.2d at 601. Moreover, the level of pain caused by an impairment varies significantly among individuals “according to the pain threshold and stamina of the individual victim.” Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986). As we have stated, when Congress amended section 423 to specifically address pain, it recognized that pain may be disabling and that individuals truly suffering from disabling pain are entitled to disability benefits.⁵ We cannot conclude that Congress intended to require objective medical evidence to fully corroborate the severity of pain while aware of the inability of medical science to provide such evidence. Our cases, except for the Bates concurrence, have never adopted this view.

The Bates concurrence took the position that Cotton is inconsistent with Nyman v. Heckler, 779 F.2d 528 (9th Cir.1985), Miller v. Heckler, 770 F.2d 845 (9th Cir.1985), and Taylor v. Heckler, 765 F.2d 872 (9th Cir. 1985). Bates, 894 F.2d at 1068-70. We disagree. We do not interpret the holdings in these three cases as requiring medical corroboration of the degree of pain.

In Nyman, the claimant asked the court to apply the Eighth Circuit’s standard for evaluating pain. Nyman, 779 F.2d at 531. This standard is the same as that adopted by Cotton. See Cotton, 799 F.2d at 1407. The Nyman court did not reject this standard, as asserted by the Bates concurrence. Instead, the Nyman court applied the standard and concluded, even under this standard, the claimant did not present credible evidence of disabling pain. Nyman, 779 F.2d at 531. Thus, we cannot interpret Nyman as holding medical evidence must support the alleged severity of pain.

In Taylor and Miller, consistent with Cotton, we rejected the claims for disability because the claimant failed to produce medical evidence of an underlying impairment. In Taylor, we stated: “A claimant’s subjective complaint of pain is by itself insufficient to establish disability.” Taylor, 765 F.2d at 876 (emphasis added). We cited Gallagher v. Schweiker, 697 F.2d 82 (2d Cir.1983), as support for this statement. In Gallagher, the Second Circuit clarified the applicable standard for evaluating pain: “The pain need not be corroborated by objective medical findings, but some impairment must be medically ascer- tained_” Id. at 84. This is the Cotton standard, and it is in accord with case law from other circuits that have considered the standard to be applied in evaluating complaints of pain. See Avery v. Secretary of Health and Human Servs., 191 F.2d 19, 21 (1st Cir.1986); Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983); Green v. Schweiker, 749 F.2d 1066, 1070-71 (3d Cir.1984); Walker v. Bowen, 889 F.2d 47, 49 (4th Cir.1989); Anderson v. Sullivan, 887 F.2d 630, 633 (5th Cir.1989); Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir.1989); Penn v. Sullivan, 896 F.2d 313, 315 (8th Cir.1990); Luna v. Bowen, 834 F.2d 161, 164-65 (10th Cir.1987); Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1215 (11th Cir. 1991); Brown v. Bowen, 794 F.2d 703, 706 n. 4 (D.C.Cir. 1986).

We conclude that Cotton correctly interpreted the 1984 amendment, its legislative history, the regulations and applicable precedent. Because the panels in Rice and Bunnell followed the Bates concurrence, instead of the Cotton-Varney-Gamer line of cases in analyzing the claimants’ subjective complaints of pain, we modify the Rice and Bunnell panel opinions as follows: In Rice v. Sullivan, 912 F.2d 1076 (9th Cir. 1990), we withdraw part V of the panel opinion and vacate the panel’s affirmance of the district court’s decision. In Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir.1990), we withdraw part II.B of the panel opinion and vacate the panel’s reversal of the district court’s decision.

With regard to the underlying district court decisions, the district court decision in Rice is vacated and the case is remanded to the district court with directions to remand to the Secretary; the district court decision in Bunnell remanding the case to the Secretary is affirmed. Further proceedings in both cases are to be in accord with this opinion.

Case No. 88-4225 {Rice), VACATED and REMANDED.

Case No. 88-4179 {Bunnell), AFFIRMED.

Footnotes

1

. Subsections 423(d)(1)(A) and 423(d)(3) (1983) stated:

(1) The term "disability" means—

(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months;

(3) For purposes of this subsection, a "physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

2

. This concern reflects Senator Long’s criticism of Polaski v. Heckler, 585 F.Supp. 1004 (D.Minn.), aff'd, 739 F.2d 1320 (8th Cir.), ordered remanded on other grounds, 751 F.2d 943 (8th Cir. 1984), vacated on other grounds, 476 U.S. 1167, 106 S.Ct. 2885, 90 L.Ed.2d 974 (1986). A careful review of Senator Long's remarks indicates that the Senator was not criticizing the particular standard applied by the district court. Rather, Senator Long's criticism was directed at the inconsistencies between the courts and the Secretary in the standard applied to evaluate pain. See 130 Cong.Rec. S6211 (daily ed. May 22, 1984).

3

. The Secretary issues Social Security Rulings to clarify the Secretary’s regulations and policy. See Paulson v. Bowen, 836 F.2d 1249, 1252 n. 2 (9th Cir.1988). The Secretary’s interpretation of 20 C.F.R. §§ 404.1529 and 416.929 is found in SSR 88-13.

Although SSRs are not published in the federal register and “do not have the force of law,” Quang Van Han v. Bowen, 882 F.2d 1453, 1457 & n. 6 (9th Cir.1989), we nevertheless give deference to the Secretary’s interpretation of its regulations. See Martin v. OSHRC, -U.S. -, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991); Vista Hill Found, v. Heckler, 767 F.2d 556, 559-60 (9th Cir.1985). We must, however, "consider them with caution,” and "will not uphold them if their application produces a result inconsistent with the statute and regulations.” Vista Hill, 767 F.2d at 560.

4

. SSR 88-13 provides in part:

There are situations in which an individual’s alleged or reported symptoms, such as pain, suggest the possibility of a greater restriction of the individual’s ability to function than can be demonstrated by objective medical evidence alone. In such cases, reasonable conclusions as to any limitationson the individual’s ability to do basic work activities can be derived from the consideration of other information in conjunction with medical evidence. This is consistent with court decisions which require that statements of the claimant or his/her physician as to the intensity and persistence of pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings are to be included in the evidence to be considered in making a disability determination.

5

. The 1984 amendment, section 423(d)(5)(A), does not apply to determinations made after January 1, 1987. Pub.L. No. 98-460, § 3(a)(3), 98 Stat. 1799-1800 (1984). We do not agree, however, with the Bates concurrence that the "sunsetting" of section 423(d)(5)(A) affects the validity of the Cotton standard. See Bates, 894 F.2d at 1071-72. The concurrence in Bates took the position that the Cotton-Vamey-Gamer line of cases interpreted only the 1984 amendment, and because the amendment had "sunsetted,” only the Secretary’s regulation remained as controlling law. However, as Judge Nelson pointed out in her dissent in Bunnell, Varney explicitly rested its analysis on an interpretation of the amendment and the regulations. Bunnell, 912 F.2d at 1156 (Nelson, J., dissenting) (citing Varney, 846 F.2d at 583). In addition, the regulations, and the Secretary’s interpretation of those regulations, are identical to those existing at the time of the enactment of the 1984 amendment. Finally, it was never the purpose of the sunset provision in the 1984 amendment to affect applicable law. See S.Rep. No. 466 at 24.