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Dodrill v. Donna Shalala Secretary of Health and Human Services

*fn* submitted seattle washington: December 14, 1993.

BETTY J. DODRILL, PLAINTIFF-APPELLANT,
v.
DONNA SHALALA,*FN** 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-91-5385-RJB. Robert J. Bryan, District Judge, Presiding.

Before: Alfred T. Goodwin, William C. Canby, Jr. and Alex Kozinski, Circuit Judges. Opinion by Judge Kozinski.

Author: Kozinski

KOZINSKI, Circuit Judge:

Dodrill appeals from a denial of disability insurance benefits under Title II of the Social Security Act. The administrative law Judge upheld the Secretary of Health and Human Services' finding that Dodrill was not disabled; a timely request for review was declined by the Appeals Council. Dodrill appealed this final administrative ruling to the district court pursuant to 42 U.S.C. § 405(g), and we review that court's grant of summary judgment to the Secretary.

Claims of disability are evaluated under the five-step procedure of 20 C.F.R. §§ 404.1520 et seq., 416.920 et seq. (1986). This case was resolved at step four where the Secretary must determine whether the claimant retains sufficient residual capacity to perform her past work. If the Secretary finds that the claimant does, she is not considered disabled and is not eligible for benefits. We consider whether the Secretary's finding that Dodrill could perform her past work was supported by substantial evidence and was free of legal error. Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989).

I. Subjective Pain Testimony

The ALJ is not required to believe pain testimony and may disregard it if there are no objective medical findings which "could reasonably be expected to cause some pain." Id. If he rejects it, however, he must justify his decision with specific findings. Id. at 602.

Here, Dodrill testified to "a real bad problem with breathing. If I move around or do any exercise at all, I, I get completely out of breath and have to use my breathalizer." CR 31. She also testified to "excruciating pain in my lower back and my right leg," id., especially if she sits for any length of time or walks, CR 31, 34 - a problem that generally prevents her from driving. CR 31. She claimed she's unable to do any household chores, ER 20; she can't bend over to get anything out of the dryer, dishwasher or cabinets, CR 35. She leaves the house approximately twice a month and otherwise appears only to sleep and take care of herself. CR 29-41, 143-149.

We have held such pain testimony "should be considered in the disability determination process 'so long as the pain is associated with a clinically demonstrated impairment.'" Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988), rev'd on other grounds upon reh'g, 859 F.2d 1396 (9th Cir. 1988) (citation omitted). Here, there was evidence of such an impairment. Dr. Cummings, the consulting physician, reported "back pain syndrome . . . quite convincing for some degree of disc disease with classicle [sic] sounding sciatica." ER 43. He "saw no reason to doubt her account of pain, made especially worse by her obesity. This would certainly be disabling so far as she would be unable to heavy [sic] physical lifting or bending." ER 44. He also noted that Dodrill "relates a good story for exercise-induced asthma and chronic bronchitis" which "also would limit her ability to perform any physical work," id., and suggested she could perform "clerical or other nonphysical activities." Id.

The ALJ nonetheless determined that Dodrill had the capacity to perform her past work as a business license inspector - a job that daily entailed two hours of walking, one hour of standing, approximately five hours of driving and frequent lifting of up to 25 pounds. ER 22. To reach this Conclusion, the ALJ must have disbelieved Dodrill's testimony that she suffers "excruciating pain in [her] lower back and [her] right leg," CR 31, while sitting for any length of time or walking. The validity of the ALJ's finding against Dodrill depends on whether he articulated a sufficient basis for rejecting her pain testimony.

If there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting that the claimant was malingering, the Secretary's reason for rejecting the claimant's testimony must be "clear and convincing," Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989), and supported by specific findings, Varney, 846 F.2d at 584. It's not sufficient for the ALJ to make only general findings; he must state which pain testimony is not credible and what evidence suggests the complaints are not credible. Id. He "must either accept [claimant's] testimony or make specific findings rejecting it." Id.

Here, the ALJ failed to make sufficient findings as to why he rejected the testimony of Dodrill and Dr. Cummings. He did note that Dodrill left her last job not because of medical necessity, but to follow her husband to the State of Washington when he retired, ER 20, and that her general condition "appears to be the same as when she was employed," ER 21. But beyond these observations, he merely repeated that there was little or nothing in the record to support Dodrill's claims of fatiguability, id., severe pain, ER 19, exercise-induced asthma, ER 21, and limited activities, id. Despite Dr. Cummings's statement that Dodrill's pain was both convincing and proportional to her medical impairments, ER 43-44, the ALJ declared that there was no impairment "which could cause these subjective complaints of easy fatigue, low back and right leg pain, to the degree to which she alleges." ER 19.

This is not a finding sufficient to reject a claimant's testimony of debilitating pain. Varney, 846 F.2d at 584. If the ALJ wished to reject Dodrill's pain testimony, he was required to point to specific facts in the record which demonstrate that Dodrill is in less pain than she claims. See, e.g., Fair, 885 F.2d at 604 (claimant "remained capable of caring for all his own personal needs, the performance of his own routine household maintenance and shopping chores, riding public ...


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