Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)

William H. ROBEY, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.

No. 88-15179.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 27, 1989.Decided July 26, 1989.

Before WALLACE and SCHROEDER, Circuit Judges, and DICKRAN M. TEVRIZIAN,^*  Jr., District Judge.

MEMORANDUM

Robey appeals from the district court's summary judgment entered in favor of the Secretary of Health and Human Services (Secretary), which affirmed the Secretary's determination that Robey was not disabled within the meaning of the Social Security Act. Robey claims that the administrative law judge (ALJ) erred by making no specific findings regarding Robey's subjective complaints. We reverse and remand.

"If the claimant submits objective medical findings establishing a medical impairment that would normally produce a certain amount of pain, but testifies that [he] experiences pain at a higher level ... the Secretary is free to decide to disbelieve that testimony, but must make specific findings justifying that decision [.]" Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (citations omitted). If the Secretary fails to articulate reasons for refusing to credit a claimant's subjective pain testimony where no issue must be resolved for a disability determination, then that testimony is taken as true. Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988) (Varney). " [R]ules developed to assure proper consideration of excess pain apply equally to other medically related symptoms." Swenson v. Sullivan, No. 88-4032, slip op. 5389, 5400 (9th Cir. May 23, 1989). If the record reveals that the ALJ would be required to award benefits if subjective complaints were credited and no outstanding issues remain to be resolved before a proper disability determination can be made, "we will not remand solely to allow the ALJ to make specific findings regarding that testimony." Varney, 859 F.2d at 1401.

Robey testified that he could not work on a regular basis because his back begins to hurt after about 50 minutes of sitting. He further testified that the time he is able to sit progressively decreases. The ALJ's failure to specify reasons for discounting this testimony is legal error and requires reversal.

Since we must credit Robey's subjective complaints as true, we conclude that no outstanding issues remain to be resolved before a disability determination can be made. The vocational expert responded to one of the ALJ's hypothetical questions by testifying that a person with Robey's medical history, and the complaints and discomforts which Robey described, would not be able to perform any substantial, gainful activity. We therefore reverse and remand for the Secretary to award disability benefits.

REVERSED AND REMANDED.