Crayton v. Bowen, 874 F.2d 815 (9th Cir. 1988)

MEMORANDUM^* 

Joyce Crayton appeals from the district court's decision upholding the determination of the Secretary of Health and Human Services (the Secretary) that Crayton was not entitled to disability insurance and supplemental security income benefits. The Secretary's decision to deny benefits " 'will be disturbed only if it is not supported by substantial evidence or it is based on legal error.' " Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)). See 42 U.S.C. § 405(g). We review the district court's decision de novo. Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275, 1278 (9th Cir. 1987).

We reverse the district court and remand this matter to the Administrative Law Judge (ALJ) to make findings and reconsider his decision in accordance with this disposition.

BACKGROUND

Crayton is a 46-year-old high school graduate with relevant past work experience in food service. She was employed in a hospital cafeteria from 1976 until February 21, 1984, the date of the alleged onset of her disability. Crayton claims she is unable to work due to pain in her back, knees, left hand and wrist, difficulty walking, sitting and lifting, difficulty carrying objects in her left hand, frequent migraine headaches, dizziness, hypertension, chest and abdominal pains, depression and anxiety.

The ALJ found that Crayton suffers from weakness of the left hand, chondromalacia of the knees, chronic low back pain syndrome and hypertension and was therefore unable to perform her past relevant work. The ALJ specifically stated that Crayton does not suffer from "any particular mental problem." The ALJ found, however, that Crayton was capable of a full range of sedentary work¹  and that the skills required for Crayton's previous jobs were not transferable. Applying 20 C.F.R. Secs. 404.1569 and 416.969 and Rule 201.21 of the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (the grids), the ALJ concluded that Crayton was not disabled, even considering "her additional nonexertional limitations."

In reaching this conclusion, the ALJ did not address any of Crayton's allegations of pain, except for lower back pain. He did not explicitly discuss the credibility of Crayton's testimony. Furthermore, the ALJ rejected the diagnosis of Dr. Minye, Crayton's treating physician, with regard to restrictions on activities and post traumatic depressive disorder, stating that Dr. Minye's conclusions were not substantiated by the medical evidence or by any other objective signs or observations.

On appeal, Crayton contends that the ALJ erred by disregarding her excess pain and otherwise discounting the credibility of her testimony without supporting his decision to do so with specific findings, by failing to properly consider the medical opinion of her treating physician and by applying the grids to her case. Crayton also argues that the ALJ's decision was not supported by substantial evidence.

DISCUSSION

Although subjective complaints of pain completely unsubstantiated by any objective medical evidence must be disregarded, "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 & Human Servs., 846 F.2d 581, 584 (9th Cir. 1988) (citing Howard v. Heckler, 782 F.2d 1484, 1488 n. 4 (9th Cir. 1986)) (emphasis in original). Although the ALJ may properly decide to disregard or disbelieve excess pain testimony--that is, claims of pain associated with a medical impairment which are greater than the pain the impairment is normally expected to produce--"we have held repeatedly that such a decision must be supported by specific findings." Id. (citations omitted). See Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987).

Crayton's knee pain is "associated with" the chondromalacia found by the ALJ. Wrist pain could relate to Crayton's sprain injury and resultant synovitis diagnosed by Dr. Minye one month prior to the administrative hearing. Dr. Wiese, in an examination in January of 1986, found psychophysiological gastrointestinal reaction, easily associated with abdominal pain.²  And although there appears to be no evidence of migraine headaches in the record except for Crayton's testimony, migraines are commonly associated with pain.

Nonetheless, the ALJ found that Crayton suffered only from "chronic low back pain." He did not discuss or even mention Crayton's complaints of knee, wrist, chest and abdominal pain or headaches in his findings. When an ALJ "gives no reason for disregarding [a claimant's] pain testimony," and does not "isolate particular complaints of pain and discuss the evidence suggesting that those complaints are not credible," these omissions are improper as a matter of law and require a reversal of the ALJ's decision. Id. at 584.³ 

Similarly, great weight is generally given to an ALJ's credibility determination. Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985)). In this case, however, the ALJ's decision does not explicitly accept or reject Crayton's testimony. There is no explicit indication that the ALJ considered Crayton's claims of pain, shortness of breath and other restrictions on her activities. The ALJ either ignored this testimony or, did not consider Crayton credible. When an ALJ's decision is based on a credibility assessment, "there must be an explicit finding as to whether the claimant's testimony was believed or disbelieved and the testimony must not be entirely discounted simply because there was a lack of objective findings." Hudson v. Bowen, 849 F.2d 433, 434-45 (9th Cir. 1988). See Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981) (an ALJ errs if he "neither expressly discredits a claimant's testimony nor articulates any reason for questioning [his or her] credibility"). There was no explicit credibility finding in this case and the omission was improper.⁴  We therefore remand to the ALJ for reconsideration and entry of explicit findings regarding Crayton's excess pain and credibility.

We add three points to be taken into consideration on remand. First, even if the medical opinion of Dr. Minye, Crayton's treating physician, is controverted, the ALJ may reject it only if he provides specific, legitimate reasons for doing so. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (citation omitted); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The ALJ can meet this burden by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986) (citation omitted) (quoted in Embrey v. Bowen, 849 F.2d at 421). However, to simply state that a treating physician's opinion is not supported by objective findings or is contrary to the conclusions mandated by the evidence is not sufficient. Embrey v. Bowen, 849 F.2d at 421. "The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. at 421-22.

Second, Dr. Repko's psychological testing results and Dr. Cooper's diagnosis and discussion of Crayton's psychiatric problems, made in March of 1986 and presented for the first time to the Appeals Council, have never been considered by the ALJ.⁵  Dr. Cooper diagnosed somatoform disorder, a well-recognized and potentially severe condition. Somatoform disorders, including psychogenic pain disorder, "present with [sic] physical symptoms suggesting a disease but for which no organic/physiologic disruption can be found," 3A Lawyers' Medical Cyclopedia, "Psychiatry and the Law," Sec. 17.17 (3rd ed. 1983), and are recognized as potentially disabling by the Social Security Administration. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 12.07. Therefore, remand will also permit the ALJ to consider Dr. Cooper's somatoform diagnosis and other psychological findings.

Finally, "where an applicant ha [s] both exertional and nonexertional limitations the use of the grids [is] permissible." Polny v. Bowen, No. 88-5623, slip op. at 15821, 15825-26 (9th Cir. Dec. 30, 1988). See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Sec. 200.00(e) (2); Razey v. Heckler, 785 F.2d 1426, 1430 (9th Cir.), modified, 794 F.2d 1348 (1986). On remand, however, if the ALJ finds that Crayton's nonexertional limitations, i.e., her pain and headaches, are sufficient, standing alone, to limit her ability to work, application of the grids would no longer be appropriate.⁶ 

REVERSED AND REMANDED to the ALJ for reconsideration and entry of findings in accordance with this disposition.

O'SCANNLAIN, Circuit Judge, dissenting:

My review of the record convinces me that contrary to the majority's conclusion, the ALJ credited the claimant with her pain testimony and used it to offset the adverse testimony of Doctors Ceasar, Smith, and Craemer. The ALJ specifically took it into account when he concluded that " [c]onsidering her testimony ... she is limited to something less than the full range of light activity." (ER 5). To require specific findings when the ALJ deems pain evidence to be helpful to the claimant would be a procedural absurdity.

Even had the ALJ rejected the claimant's testimony, there was no prima facie showing of "excess pain" and therefore, in my view, Varney does not come into play.

I do not read Varney to require specific findings on "associated pain" alone. There is substantial evidence in the record to support the ALJ's determination, and I would affirm the district court.