Avery v. Secretary of Health and Human Services, 86-1080

• Decision Date: 16 July 1986
• Docket Number: No. 86-1080,86-1080
• Citation: 797 F.2d 19
• Parties: , Unempl.Ins.Rep. CCH 16,883 Ernest S. AVERY, et al., Plaintiffs, Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 19

797 F.2d 19

14 Soc.Sec.Rep.Ser. 301, Unempl.Ins.Rep. CCH 16,883

Ernest S. AVERY, et al., Plaintiffs, Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 86-1080.

United States Court of Appeals, First Circuit.

Argued June 3, 1986.

Decided July 16, 1986.

Judith C. Saltzman, Boston, Mass., with whom Sarah Anderson, Greater Boston Legal Services, and Linda Landry, Neighborhood Legal Services, Lynn, Mass., were on brief, for plaintiffs, appellants.

Susan G. Winkler, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston Mass., was on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, COFFIN and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

This appeal has been brought by six named plaintiffs, suffering from a variety of ailments, who allege that defendant Secretary of Health and Human Services failed to consider properly their subjective claims of pain when he evaluated their ability to engage in substantial gainful employment. Consequently, they allege, their disability benefits under both Title II (Social Security Disability Insurance--SSDI) and Title XVI (Supplemental Security Income--SSI) of the Social Security Act, 42 U.S.C. Secs. 401-433, and Secs. 1381-1385, were wrongfully terminated.

Plaintiffs' first amended complaint was filed in July, 1983. They sought certification of a class on several issues, including the propriety of the Secretary's evaluation of pain. On April 12, 1984, the district court, after certifying a class on one of the issues, denied certification with respect to the pain issue, concluding that plaintiffs had not shown that Fed.R.Civ.P. 23(a)'s requirements of numerosity, commonality, typicality and adequacy of representation had been satisfied. At the time of this ruling four of the named plaintiffs had been returned to payment status and were receiving disability benefits. Subsequently, in September, 1984, the district court reversed the Secretary's termination of the two remaining plaintiffs' benefits and restored them to payment status. In August, 1984, a seventh person, Frances Teague, who, unlike plaintiffs, had been denied initial benefits, sought to intervene.

In October, before the court ruled on the intervention request, Congress enacted the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (1984) (the Act). On November 7, 1984, the Secretary moved to dismiss the complaint, on the grounds that there were no remaining named plaintiffs with a pending claim on the pain issue and that the new Act established a clear and presently applicable standard of evaluating pain. On December 4, 1984, plaintiffs filed their second amended complaint, alleging principally that the Secretary's Social Security Ruling 82-58 (SSR 82-58) violated the new Act. ¹ SSR 82-58, which we shall later examine in some detail, was characterized as requiring "in all cases so-called 'objective' documentation not merely of the cause of subjectively felt pain, but also of its intensity." (Emphasis in original.) The new complaint also alleged that the plaintiffs represented a class consisting of every Massachusetts disability benefits applicant with a physical or mental abnormality which causes pain whose claim was or will be denied or terminated "because the Secretary ... relied, at least in part, upon an absence or lack of clinical findings in determining that the pain is not disabling." The prayers for relief were that SSR 82-58 be declared illegal and that a declaratory judgment proscribe the Secretary from conditioning disability benefits for "persons with medically documented abnormalities that cause pain ... [on] 'objective' or clinical documentation of the intensity of the pain."

The Act, after stating that a claimant's statement as to his pain "shall not alone be conclusive evidence of disability", requires first that

"there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment ... which could reasonably be expected to produce the pain ... alleged...." 42 U.S.C. Sec. 423(d)(5).

It then provides that disability is established if such findings

"when considered with all evidence ... (including statements of the individual or his physician as to the intensity and persistence of such pain ... which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability." Id.

The Act also calls for the appointment by the Secretary of a Commission on the Evaluation of Pain to conduct, in consultation with the National Academy of Sciences, a study concerning the evaluation of pain under Titles II and XVI.

On December 10, 1984, the district court issued a memorandum of decision dealing with a number of issues. The specific decision with which we are here concerned was the court's ruling that plaintiffs' pain claims had been rendered moot. ² The court made essentially three points: that the Act had established a standard for evaluating pain; that it adopted all of the Secretary's regulations and policies, including, impliedly, 82-58; and that in any event it would be premature to evaluate the policies before the Secretary had had an opportunity to measure them against the statutory standard.

We confess that we would be troubled if the consistency of 82-58 with the Act were to be dispositive of this appeal. The Secretary draws comfort from a statement in the legislative history that Congress intended to adopt "the present regulatory policy on the use of evidence of pain in theevaluation of disability." 130 Cong.Record, H9829 (daily ed. Sept. 19, 1984). Plaintiffs, however, construe "regulatory" as a reference to only regulations, not to rulings. Our own view is that however expansive may have been the intent of Congress in embracing the Secretary's then existing policies, we see possible tension between the Act and 82-58.

The Act makes clear that, as a primary requirement, there must be a clinically determinable medical impairment that can reasonably be expected to produce the pain alleged. It then goes on to provide that other evidence including statements of the claimant or his doctor, consistent with the medical findings, shall be part of the calculus. If this second provision is to have any meaning, the statements of a claimant and his doctor must be additive to clinical or laboratory findings. ³ This does not mean that any statements of subjective pain go into the weighing. For example, the Act would not permit the acceptance, as possibly decisive evidence of disability, of complaints of violent headaches from a claimant whose medically determinable impairment indicating the probability of pain was confined to the lower extremities. Nevertheless, so long as statements of a claimant or his doctor are not inconsistent with the objective findings, they could, if found credible by the adjudicator, permit a finding of disability where the medical findings alone would not.

SSR 82-58 gives us pause. It seems to speak out of both sides of its mouth, the "objective only" side more than the side allowing consideration of certain "subjective" statements of pain. To begin, its "Policy Statement", reproduced in the margin, ⁴ ] starts off with the basic requirement of an objectively established medical condition that could reasonably be expected to produce the pain claimed. Then it goes on to say that "symptoms are still not controlling" and that clinical and laboratory data must "reasonably account for the symptom." The clear inference is that these data are in addition to the findings of an impairment that could be a likely source of pain. If there were doubt on this score, the last three sentences quoted make it clear--or at least arguable--that any claim of intensity must be corroborated by, not merely be consistent with, clinical findings.

The discussion in SSR 82-58 on determining Residual Functional Capacity (RFC) points the other way. It proceeds to recognize that "[s]ymptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective medical findings alone." Consideration should, it continues, be given "alleged frequency and duration of [pain]" as well as precipitating factors, effect on daily activities, dosage and effects of medication, and recorded observations of others. And denial decisions must state why subjective testimony of limitation of function because of pain is not supported by the evidence.

Finally, uncertainty is compounded by the two examples described, No. 1 "Effects of Pain Supported by the Evidence" and No. 2 "Effects of Pain Unsupported by the Evidence." We have attempted our own comparative summary in the Appendix. The only clear objective difference we see between the two examples is the presence of muscle spasm of paraspinal muscles in Example 1 and its absence in Example 2. This is apparently the one factor--neither Example showing any sensory or motor loss, leg pain, or muscle wasting--that 82-58 deems sufficient to overcome the stronger factors in Example 2--the evidence of guarded movements, the treating physician's strong opinion that claimant could do no work, and the claimant's professed inability to do any household chores. We confess as laymen that our reading of these examples indicates an extreme insistence on objective medical findings to corroborate subjective testimony of limitation of function because of pain. We suspect that SSR 82-58 may encourage adjudicators to require a closer nexus between complaints of pain and observable medical findings than the Act now contemplates.

We are fortunately spared the task of making a definitive ruling on the compatibility between SSR 82-58 and the Act. On August 1, 1985, the Secretary issued instructions for its Program Operations Manual System (POMS), DI T00401.570. This is a seven page circular, its...