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Bunnell v. Louis W. Sullivan Secretary of Health and Human Services

filed: October 1, 1991.

MARCIA C. BUNNELL, PLAINTIFF-APPELLEE,
v.
LOUIS W. SULLIVAN,*FN* SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLANT. ARTHUR RICE, PLAINTIFF-APPELLANT, V. LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-87-677-T. Jack E. Tanner, District Judge, Presiding. Appeal from the United States District Court for the District of Oregon. D.C. No. C V-86-6006-FR. Helen J. Frye, District Judge, Presiding.

Tang, Schroeder, Fletcher, Pregerson, Reinhardt, Beezer, Wiggins, Kozinski, Thompson, O'Scannlain and Trott, Circuit Judges. Opinion by Judge Thompson; Concurrence by Judge Kozinski, with whom Judges Wiggins, O'Scannlain and Trott, join.

Author: Thompson

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 ("ALJ") 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 fibrositis, but noted "most patients are not totally disabled with this diagnosis."

The first ALJ found that Rice was suffering from a "severe impairment," but rejected Rice's testimony concerning his pain because the ALJ 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. [Rice]'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 ALJ 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 . . . result[ing] in the development of valgus, 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 ALJ 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 ALJs 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.*fn1

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 beneficiary [sic] has pursued his claim through the ALJ or district court level."*fn2 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, 90 L. Ed. 2d 974, 106 S. Ct. 2885 (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 . . . . Direct medical evidence 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 ...


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