Marcus v. Califano

• Decision Date: 11 December 1979
• Docket Number: No. 86,D,86
• Citation: 615 F.2d 23
• Parties: Helene MARCUS, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee. ocket 79-6084.
• Court: U.S. Court of Appeals — Second Circuit

Page 23

615 F.2d 23

Helene MARCUS, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 86, Docket 79-6084.

United States Court of Appeals, Second Circuit.

Argued Sept. 20, 1979.

Decided Dec. 11, 1979.

Maurice S. Roth, New York City (Marc L. Ames, New York City, on the brief), for plaintiff-appellant.

Peter R. Paden, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., and Peter C. Salerno, Asst. U. S. Atty., New York City, on the brief), for defendant-appellee.

Before WATERMAN, FEINBERG and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

This appeal raises the question as to what is the proper standard for evaluating claims under the Social Security Act which involve subjective pain.

Helene Marcus commenced this action in the district court under Section 205(g) of the Social Security Act as amended, 42 U.S.C. § 405(g) (1976), to review a final determination by the Secretary of Health, Education and Welfare ("Secretary") which denied her application for disability insurance benefits. The district court took on submission cross motions for judgment on the pleadings and, in a memorandum and order dated February 23, 1979, granted the Secretary's motion. From the judgment entered on that memorandum and order, Mrs. Marcus ("appellant") has taken this appeal.

I.

Appellant is a forty-six year old woman who lives in the Bronx with her husband and two children. She was born in France. She completed the eleventh grade in this country. For the first six years after coming to the United States she worked in a laundry. Since then she has been employed as a clerical worker, most recently with the Chemical Bank. Her work at the bank lasted for seven years, until the onset of her alleged disability; her work consisted of typing, filing and other office work. She testified ¹ that this job required sitting, standing, and bending on her part.

Appellant claims that she suffers from persistent and intense low back pain. She testified that because of the constant pain she can sit or stand only for brief periods of time, and when she does sit she must place all her weight on her right side. She further testified that she can walk no more than half a block before the pain becomes unbearable, that she experiences pain on urination, and that because of the pain she has difficulty sleeping. The pain, she testified, never stops. Her only relief comes when she lies flat on her right side.

Appellant filed an application with the Secretary for disability insurance benefits on April 20, 1976. Her application was denied without a hearing both initially and upon reconsideration. Thereafter a hearing was held on January 13, 1977 by the ALJ. On March 8, 1977 the ALJ found that appellant was not disabled. This decision became the final decision of the Secretary on April 11, 1978 when it was approved by the Appeals Council.

In addition to appellant's testimony, a number of medical reports and records were received in evidence before the ALJ and the Appeals Council ² which documented both appellant's continuous complaints of low back pain and the numerous attempts to diagnose and treat the cause of the pain. A report from appellant's treating physician, Dr. Tindel, indicated that appellant had only a 75% capacity to sit, stand, and walk; he diagnosed her as suffering from back pain, rectal bleeding, and possible Cushings Syndrome (a condition caused by any of several kinds of tumors). A later report by Dr. Tindel stated that appellant suffered from hypertension and osteoporosis of the back (a condition characterized by weak and brittle bones). He concluded that appellant was "unable to work and is permanently disabled."

A report from appellant's second treating physician, Dr. Herbstein, diagnosed her condition as a herniated nucleus pulposis (a ruptured disc), although her spinal X-ray was negative. Dr. Herbstein agreed with Dr. Tindel's conclusion that appellant had only a limited ability to sit, stand, and walk.

Further medical records were introduced from the Albert Einstein Hospital and the Hospital for Special Surgery. At the former, appellant's condition was diagnosed as low back pain and depression; a chest and spine X-ray, however, was negative. At the Hospital for Special Surgery, appellant was shuttled between the Neurology Clinic, the Hip Clinic, and the Back Clinic; the cause of her pain alternately was labeled as musculo-skeletal disease of the left hip, mild low back strain with mild sciatic irritation, and possible trochanteric bursitis. No conclusive diagnosis, however, was made.

At the hearing before the ALJ, Dr. Cohen a board-certified orthopedist who had reviewed the records in evidence but who never examined appellant concluded that appellant had osteoporosis and hypertension. In his opinion, however, the myelogram, X-rays, and other medical records did not support the extent of the physical limitations claimed by appellant. He testified that appellant might have some pain caused by osteoporosis, but that she should be able to engage in work that did not require lifting or undue bending.

Other medical records were submitted to and considered by the Appeals Council after the ALJ had ruled against appellant. One such record documented appellant's treatment at Montefiore Hospital, after the hearing, for rectal bleeding and low back syndrome. Clinical tests there proved negative. There also was submitted a report of a psychiatric examination of appellant by a Dr. Schaye. His report stated that appellant was depressed and preoccupied with feelings of hopelessness concerning her illness. In the opinion of Dr. Schaye, appellant was suffering from a psychiatric illness which, together with her chronic physical complaints, rendered her "unsuitable for gainful employment."

The Appeals Council approved the decision of the ALJ that appellant was not disabled. The decision of the ALJ thus became the final decision of the Secretary. Appellant then commenced this action in the district court for judicial review.

II.

In the light of these facts and prior proceedings, we turn directly to the critical question presented, namely, what is the proper standard for evaluating claims under the Social Security Act which involve subjective pain.

In providing for judicial review of decisions on disability benefits, 42 U.S.C. § 405(g) requires that factual findings of the Secretary shall be conclusive if supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971); Levine v. Gardner, 360 F.2d 727, 729 (2 Cir. 1966). Where evidence has not been properly evaluated because of an erroneous view of the law, however, the determination of the Secretary will not be upheld. Northcutt v. Califano, 581 F.2d 164, 167 (8 Cir. 1978); see Cutler v. Weinberger, 516 F.2d 1282, 1285-86 (2 Cir. 1975).

It has been established, both in this Circuit and elsewhere, that subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other "objective" medical evidence, Ber v. Celebrezze, 332 F.2d 293 (2 Cir. 1964); Northcutt v. Califano, supra, 581 F.2d at 166-67; Sayers v. Gardner, 380 F.2d 940, 948 (6 Cir. 1967); Page v. Celebrezze, 311 F.2d 757, 762-63 (5 Cir. 1963); see Cutler v. Weinberger, supra, 516 F.2d at 1286-87; Stark v. Weinberger, 497 F.2d 1092, 1097 (7 Cir. 1974); Celebrezze v. Warren, 339 F.2d 833, 837-38 (10 Cir. 1964). ³

In the instant case, the subjective evidence of appellant's pain, based on her own testimony and the medical reports of examining physicians, is more than ample to establish her disability, if believed. The Secretary does not dispute this. ⁴ It also is clear, however, that the Secretary is not obliged to accept without question the credibility of such subjective evidence. Peterson v. Gardner, 391 F.2d 208, 209 (2 Cir. 1968); Reyes Robles v. Finch, 409 F.2d 84, 87 (1 Cir. 1969); Spicer v. Califano, 461 F.Supp. 40, 47-48 (N.D.N.Y.1978). The ALJ has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.

In this case, if the ALJ after weighing the objective medical evidence in the record, appellant's demeanor, and other indicia of credibility had decided to discredit appellant's claims of severe, disabling pain, then the decision would be supported by substantial evidence and we would affirm. If, on the other hand, the ALJ in fact did not consider the credibility of appellant's claims of disabling pain, but instead rejected her claims on the ground that objective, clinical findings did not establish a cause for such intense pain, then in our view the Secretary's decision was premised on an erroneous legal standard, and we must reverse. "Disregard of a claimant's subjective complaints of pain . . . is not justified solely because there exists no objective evidence in support of such complaints." Northcutt v. Califano, supra, 581 F.2d at 166.

Under the Social Security Act, a claim of disability must be supported by medical evidence of a physical or mental impairment. 42 U.S.C. § 423(d) (1976). There is no dispute in this case that appellant suffered from pain resulting from a medical impairment. The ALJ expressly found that appellant suffered from osteoporosis, with some resulting pain. The issue before us concerns the reason why the ALJ (and therefore the Secretary) ignored appellant's claims of severe, disabling pain claims that were supported by appellant's testimony and by diagnoses...