Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1984)

MEMORANDUM^**

Robert D. Wright appeals the district court's denial of disability benefits under the Social Security Act, 42 U.S.C. § 405(g). The district court's denial affirmed a prior ruling by an administrative law judge ("ALJ"). This became the final decision of the Secretary when the appeals council declined to review the decision of the ALJ. 20 C.F.R. Sec. 404.981 (1987). Because we conclude that the ALJ's findings were not based on substantial evidence, we reverse.

Appellant Wright was 49 years old at the time of his hearing for social security disability benefits. He has an eighth grade education and past relevant work experience as a truck driver, truss builder, warehouseman, logger, farm laborer and tractor driver. In July of 1983, Wright's right shoulder was seriously injured when the truck he was driving tipped over. Wright received surgery and rehabilitation for his shoulder, and now has regained most of his functional capacity. However, Wright claims disability due to severe chronic pain in his shoulder. He claims that the onsets of pain are so frequent and severe that he is unable to maintain any job. Wright's current treating physician, several consulting physicians, and the examining physician of the Social Security Administration uniformly report Wright's pain; but no one can find an organic reason for the pain to the extent reported. There is no dispute that Wright suffers from pain due to his shoulder impairment.

Further surgery was performed on Wright's shoulder in November of 1983, revealing degenerative arthritis and subluxation of the acromioclavicular joint. The surgery did not relieve the pain, nor did various other treatments. Wright filed an application for disability benefits on March 23, 1984.

In addition to his shoulder, Wright has other work limitations. In 1963, he was involved in a motorcycle accident which resulted in the amputation of his left leg below the knee. In 1971, he underwent a laminectomy followed by a lumbar fusion to relieve persistent lower back pain. Wright never claimed permanent disability based on his leg or back injuries. They did contribute to the ALJ's finding, however, that Wright could no longer perform his former occupation of a long-haul truck driver.

Wright raises two issues on appeal: (1) that the ALJ's decision was not supported by substantial evidence; and (2) that the Secretary erred in not allowing Wright to supplement the record. Because of our disposition of the first issue, the second issue need not be addressed.

Pursuant to 42 U.S.C. § 405(g), an ALJ's denial of disability benefits will be set aside only if it is unsupported by substantial evidence or if legal error was made. Young v. Heckler, 803 F.2d 963, 966 (9th Cir. 1986). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We make an independent determination whether the ALJ's findings were supported by substantial evidence, and in doing so we consider the record as a whole. Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985).

The ALJ found that Wright was impaired due to his right shoulder injury, left leg amputation, and lower back surgery. The ALJ concluded that, as a result of these impairments, Wright could not perform his previous occupation. In light of this conclusion, the key issue in this case is whether Wright has the residual functional capacity to perform light-level work. If he does not, he is disabled and entitled to benefits. 20 C.F.R. Sec. 404.1520(f).

Wright's treating physician stated that Wright cannot perform any occupation since he would need to take frequent breaks to deal with the pain. The vocational expert who testified agreed that if Wright's testimony were believed, Wright could not maintain even light-level employment. The ALJ concluded that Wright could maintain light-level employment, and was therefore not disabled, because he did not find Wright's testimony as to his excess pain to be credible. In the ALJ's words, "claimant's pain is not as severe as he testified and has asserted to doctors." The ALJ justified this conclusion on the basis that Wright's excess-pain testimony was not supported by objective medical findings.

The ALJ is not required to believe Wright's pain testimony and may disregard it if Wright does not submit objective medical findings establishing a medical impairment that could reasonably be expected to produce the claimed pain. Gamer v. Secretary of Health and Human Services, 815 F.2d 1275, 1279 (9th Cir. 1987) (citing Green v. Heckler, 803 F.2d 528, 531-32 (9th Cir. 1986)). See also 42 U.S.C. § 423(d) (2) (A). However, it is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings. Gamer 815 F.2d at 1279 (citing Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986)).

There is no question that Wright submitted objective medical evidence of a medical impairment that could reasonably be expected to produce some pain. Cotton, 799 F.2d at 1407. Wright submitted uncontroverted medical evidence of a shoulder injury. He has submitted the uncontroverted diagnoses of several physicians stating that he suffers from post-traumatic arthritis in the right acromioclavicular joint. An electromyogram showed some "give-away" when the muscle is undergoing pain. Wright has difficulty raising the shoulder to the horizontal plane and fully extending his arm. He has diminished grip strength on the right and pain caused by horizontal motions. Wright also appears to have a calcification in the bicipital tendon area. Additionally, Dr. James Van Olst examined Wright at the request of the Social Security Administration. He reported that Wright had tenderness in the right shoulder and the right distal clavicle. Dr. Van Olst also stated that he felt claimant's pain may be due to scarring about the shoulder joint from the surgery. Indeed, even disregarding Wright's current treating physician, Dr. Chester, whom the ALJ chose not to believe, no physician who treated or examined Wright disbelieved that he was in pain. Every medical report forming the basis of this record notes Wright's complaints of severe chronic pain in his shoulder area.

The only question is whether the ALJ properly discredited Wright's excess pain testimony. The ALJ attempted to justify his denial of benefits on the basis that Wright did not provide any objective evidence to substantiate the degree of Wright's pain. However,

"we have never required that the medical evidence identify an impairment that would make the pain inevitable.... [I]f such a requirement were imposed, there would be no occasion for subjective, personal testimony in a disability hearing. Furthermore, requiring that pain be corroborated by such rigorous proof would overlook the fact that pain is a highly idiosyncratic phenomenon, varying according to the pain threshold and stamina of the individual victim."

Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986); (citations omitted) see also Cotton, 799 F.2d at 1407 (" 'Excess pain' is by definition, pain that is unsupported by objective medical findings. If the Secretary were free to disbelieve excess-pain testimony solely on the ground that it was not supported by objective medical findings, then the Secretary would be free to reject all excess-pain testimony. This court has rejected that interpretation of Sec. 423(d) (5) (A).")

In Howard, we further stated that to deny Howard's claim of disability because he is able to engage in periodic restricted travel trivializes the importance that we have consistently ascribed to pain testimony. 782 F.2d at 1488; see also Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984). As in Howard, the ALJ in this case gave great weight to the fact that Wright is able occasionally to chop wood and mow his lawn. Also as in Howard, however, the ALJ trivialized Wright's statements that he pays for these activities with severe pain afterwards. The record in this case contains objective medical, clinical and laboratory evidence that Wright suffered physical conditions that could reasonably be expected to produce some degree of pain and limitation. See Cotton, 799 F.2d at 1407-08. "Yet the only reason given by the ALJ for finding [Wright] not disabled was that [his] subjective complaints were disproportionate to the medical evidence. This constitutes legal error and requires reversal." Id.

Because the record in this case is fully developed, there is no need to remand for further proceedings. Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988) (In cases where there are no outstanding issues that must be resolved before a proper disability determination can be made, and where it is clear from the administrative record that the ALJ would be required to award benefits if the claimant's excess pain testimony were credited, we will not remand solely to allow the ALJ to make specific findings regarding that testimony.) As in Varney, accepting Wright's testimony as true, the vocational expert's testimony establishes that Wright cannot work and is entitled to disability benefits. Id.

The judgment of the district court is REVERSED and the case is REMANDED with instructions to remand to the Secretary for immediate payment of benefits.