Fair v. Bowen

• Decision Date: 13 September 1989
• Docket Number: No. 88-1751,88-1751
• Citation: 885 F.2d 597
• Parties: , Unempl.Ins.Rep. CCH 14900A Jack FAIR, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services of the United States, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 597

885 F.2d 597

27 Soc.Sec.Rep.Ser. 92, Unempl.Ins.Rep. CCH 14900A

Jack FAIR, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services of the United States, Defendant-Appellee.

No. 88-1751.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 14, 1989.

Decided Sept. 13, 1989.

Frances L. Hancock, Hyatt Legal Services, San Francisco, Cal., for plaintiff-appellant.

Dennis J. Mulshine, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WIGGINS and KOZINSKI, Circuit Judges, and MARSH, District Judge. ^*

KOZINSKI, Circuit Judge:

Jack Fair suffers from a herniated disc, sciatic pain radiating into his thigh, arthritis in his back and nearly all major joints, headaches, obesity, gastric distress, hypertension, allergies, social isolation, anxiety, claustrophobia and insomnia. His application for Disability Insurance benefits, pursuant to Title II of the Social Security Act, 42 U.S.C. Sec. 401 et seq. (1982 & Supp. V 1987), is the subject of this appeal.

I

The factual and procedural history of this case are not atypical. Fair is a sixty-one year old man whose education ended after high school and three years of training in interior design. After four years of military service, Fair began a career of public employment which would last nearly thirty years. He spent the majority of this period working for the City and County of San Francisco: From 1962 to 1970 he collected coins from parking meters, work which required extensive walking and heavy lifting; and from 1970 to 1980 he worked as a tax investigator, a job he performed primarily while sitting at a desk. Since 1980, when the city placed him on disability retirement and began providing him with an aftertax pension of $712 per month, Fair has not been employed other than for a brief period in 1981. Fair has never married, has no children and lives alone.

This appeal concerns Fair's third application for Disability Insurance benefits. He filed the first one in 1980, soon after he retired. His first application was denied by an Administrative Law Judge on May 19, 1981; Fair did not appeal. He filed a second application in 1982, which was denied by an ALJ on July 12, 1983. This decision was affirmed by the Appeals Council, and again by a district court. Fair v. Heckler, No. C-83-6044-CAL (N.D.Cal. Dec. 17, 1985). Although the doctrine of res judicata is not applied rigidly to disability determinations, Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir.1988), it applies here: Unless Fair seeks to reopen one of the prior determinations, he is precluded from claiming disability for the period before July 12, 1983. See Green v. Heckler, 803 F.2d 528, 530 (9th Cir.1986). Moreover, the earlier determinations create a presumption that Fair continues to be able to work; he thus bears the burden of proving that his condition has worsened since July 12, 1983. See id.

Fair filed his current application on July 31, 1984. He appeared, represented by counsel, before an ALJ on February 19, 1986. Fair testified as to his education and employment history, his medical condition, and his current daily activities. He explained that he suffers from headaches, for which he takes nonprescription medicine; back and shoulder pain, which is aggravated by bending and inclement weather, and which prevents him from walking for distances longer than a few city blocks; pain in his right leg so intense that it interferes with his ability to sleep and occasionally causes him to cease all activity; and a number of allergies, for which he takes a variety of medication. In response to questioning by the ALJ, Fair testified that he has been hospitalized for only one night since 1979, for a myelogram. He has pursued one two-week course of physical therapy in 1984. He is able to drive and take public transportation, and he cleans his own apartment.

Dr. David Bliss, Fair's treating physician, also testified at the hearing. Dr. Bliss, a specialist in internal medicine, has treated Fair since 1981. He described a 1981 x-ray of Fair's spine as showing degeneration consistent with Fair's complaints of pain. He explained that an attempt at physical therapy proved unsuccessful; that he has prescribed a number of different types of pain medication, none of which has relieved Fair's pain; that Fair's myelogram was normal, suggesting that surgery would be ineffective; and that Fair has not followed recommended exercise and physical therapy programs designed to reduce his weight and relieve his back pain. Dr. Bliss observed that Fair has consistently complained of pain over a period of five years, and that based on Fair's subjective complaints, he would be unable to perform sedentary work requiring him to sit in one position for longer than fifteen to thirty minutes.

The administrative record contains four medical reports in addition to that of Dr. Bliss. Three of these pertain solely to Fair's psychological condition. The fourth was contributed by Dr. William Ross, an orthopedist who conducted a consultative examination of Fair for his previous application; the report predates the period at issue, and is thus relevant only to Fair's burden of proving his condition has worsened since 1983. Dr. Ross notes Fair's complaints of back and leg pain, but arrives at no conclusion as to Fair's employability. The psychological reports split two to one against a finding of disability: Dr. Leonard Newman, a psychologist, concludes that Fair's "capacity for sustained concentration or sustained work effort of any type is inadequate for the general labor market," Administrative Transcript [Tr.] 328; while Dr. Ronald Johnson, a psychiatrist, finds no evidence of a major disorder, Tr. 307, and Dr. Lawrence Katz, a psychologist, concludes that Fair's emotional problems "do not appear to be particularly serious and should not preclude employment or even constitute much of an additional handicap in terms of his employability." Tr. 331-32.

The ALJ issued his decision on March 28, 1986. After reviewing the testimony of Fair and Dr. Bliss, and after considering each medical report, the ALJ determined that Fair is capable of returning to his past employment as a tax investigator, and is accordingly ineligible to receive Disability Insurance benefits. In re Fair, No. 541-24-0650 (Mar. 28, 1986), at 8-9. To reach this conclusion, the ALJ had to take the two steps that constitute the main points of contention on appeal: First, the ALJ disbelieved Fair's allegations of pain and accordingly determined that Fair's pain does not preclude him from working. Second, the ALJ rejected Dr. Bliss's conclusion that Fair was disabled, finding it to be largely based on Fair's subjective complaints of pain rather than on objective medical findings that Fair's condition had deteriorated since his prior application.

The Appeals Council adopted the ALJ's decision as the final decision of the Secretary. Fair appealed; the district court granted the Secretary's motion for summary judgment. Fair v. Bowen, No. C-86-5961-CAL (N.D.Cal. Dec. 15, 1987). Fair appealed once more. We review the judgment of the district court de novo; we thus examine the decision of the Secretary to ensure that it is supported by substantial evidence and free of legal error. Adams v. Bowen, 872 F.2d 926, 927 (9th Cir.1989).

II

Fair claims that the ALJ committed a number of errors. Only two of these allegations deserve extended discussion.

A. Pain

Pain has been the subject of an unusually large number of our recent published Social Security opinions, and for good reason. Unlike most medical conditions capable of supporting a finding of disability, pain cannot be objectively verified or measured. While the physical conditions causing pain can usually be objectively ascertained, the pain itself cannot; the very existence of pain is a completely subjective phenomenon. So is the degree of pain: The amount of pain caused by a given physical impairment can vary greatly from individual to individual. To make matters more difficult, ordinary language permits the expression of only the most rudimentary distinctions among levels of pain: A claimant can testify that his leg hurts a little, or a lot, or somewhere in between, but such descriptions provide only a dim insight into the claimant's subjective experience of pain.

This case provides a good example. At the hearing before the ALJ, Fair's able attorney found herself with no method of conveying Fair's feelings of pain other than by asking him to rank them on a scale of one to ten; Fair's ranking ("at least 8 and sometimes as much as 10," Tr. 76) is of only marginal assistance to a decisionmaker whose own subjective one-to-ten scale may differ significantly.

But despite our inability to measure and describe it, pain can have real and severe debilitating effects; it is, without a doubt, capable of entirely precluding a claimant from working. Because pain is a subjective phenomenon, moreover, it is possible to suffer disabling pain even where the degree of pain, as opposed to the mere existence of pain, is unsupported by objective medical findings. Referring to such pain as "excess pain," our cases have established a clear rule regarding its assessment: Once a claimant submits objective medical evidence establishing an impairment that could reasonably be expected to cause some pain, ¹ "it is improper as a matter of law for an ALJ to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings." Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.1986) (per curiam). The rationale behind the rule is obvious: Excess pain is by definition pain at a level above that supported by medical findings; permitting the Secretary to disbelieve pain testimony merely because it is objectively unsupported...