Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1980)

MEMORANDUM^** 

Earl Freeman appeals the district court's judgment in his action for disability and supplemental income benefits affirming the Secretary's decision that Freeman was not disabled from September 1986 to April 1987. We have jurisdiction under 28 U.S.C. § 1291 (1982), and we reverse and remand for the payment of benefits.

Freeman injured his back on June 16, 1980. In February 1981, Freeman underwent his first surgery, a lower lumbar fusion. In September 1985, Freeman underwent a second surgery because the 1981 fusion had not become solid. Chest x-rays later revealed a disc protrusion in the area of the fusion, and in April 1987 Freeman underwent his third surgery. The Secretary concedes that Freeman is now disabled and entitled to benefits based on his 1980 injury and unsuccessful surgeries. He contends, however, that during the period September 1986 to April 1987, Freeman had recovered to the point that he was temporarily not disabled.

We accept Freeman's argument that the ALJ improperly discredited the opinion of his treating physician, Dr. Berselli. In November 1987, Berselli opined that Freeman's back condition rendered him totally disabled as of September 1986. The ALJ rejected that conclusion on the ground that it was inconsistent with Berselli's conclusion in March 1987 that Freeman could perform light work. Yet, Berselli had specific reasons for modifying his opinion. Most significantly, Freeman's back condition required fusion surgery just one month after Berselli reached his March 1987 conclusion. Furthermore, the April 1987 fusion still did not solve Freeman's problems; the fusion had not become solid by November 1987. Thus, the ALJ's reason for rejecting Berselli's November 1987 opinion--because it was internally inconsistent--was not legitimate, which renders the ALJ's rejection of Berselli's opinion improper. See Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (ALJ must offer specific and legitimate reasons for rejecting a treating physician's opinion).

We also accept Freeman's argument that the ALJ improperly discredited his pain testimony. Freeman testified that he suffers constant lower back pain, which often radiates into his legs. He testified that this pain allows him to stand or walk for only two to fifteen minutes, and allows him to sit for less than thirty minutes. He also testified that the pain limits his mobility and range of motion, so that he cannot bend or stretch to reach objects, and that he can lift no more than twenty pounds. Additionally, he testified that his pain allows him to drive only short distances, and that he must stop frequently to rest and stretch.

The ALJ discredited Freeman's pain testimony by simply stating that "claimant's testimony is not persuasive for a finding of disability." Although the ALJ may disregard a claimant's self-serving statements of pain if they are unsupported by clinical evidence, he may not do so if uncontroverted medical evidence indicates a condition which could reasonably be expected to produce such pain. See Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).

Here, the uncontroverted medical evidence indicates just such a condition. Freeman sustained a severe lower back injury in 1980, and that he now suffers mild scoliosis of the lumbar spine, degenerative disc disease, and arthritis. His back condition has required three surgeries, fusing three vertebral bodies together. Thus, we reject the ALJ's conclusion that Freeman's testimony was not credible, and accept that testimony as true. Cf. Varney v. Secretary of Health and Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988) (accepting as true claimant's pain testimony where ALJ improperly rejected it).

Once Berselli's opinion and Freeman's pain testimony are accepted as true, substantial evidence does not support the ALJ's decision. Indeed, the Secretary does not dispute the testimony of a vocational expert, which indicated that if a person suffered the pain Freeman testified he suffered, then that person could do no work in the national economy. Therefore, we reverse the judgment of the district court and remand for the computation and payment of benefits. See id. (where record is fully developed and it is clear that benefits should be awarded if claimant's pain testimony is accepted, then remand for payment of benefits is more appropriate than remand for additional findings).

We also grant Freeman reasonable attorney's fees. We direct the parties to submit the appropriate documentation to the district court so that it may determine, pursuant to 42 U.S.C. § 406(b) (1), the appropriate amount of such fees.

REVERSED and REMANDED for the computation and payment of benefits.