Mickles v. Shalala

• Decision Date: 18 July 1994
• Docket Number: No. 93-1891,93-1891
• Citation: 29 F.3d 918
• Parties: , Unempl.Ins.Rep. (CCH) P 14051B Nannie MICKLES, Plaintiff-Appellant, v. Donna SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 918

29 F.3d 918

45 Soc.Sec.Rep.Ser. 106, Unempl.Ins.Rep. (CCH) P 14051B

Nannie MICKLES, Plaintiff-Appellant, v. Donna SHALALA, Secretary of Health and Human Services Defendant-Appellee.

No. 93-1891.

United States Court of Appeals Fourth Circuit.

Argued Feb. 7, 1994.

Decided July 18, 1994.

ARGUED: Hugh Fairley O'Donnell, Client Centered Legal Services of Southwest Virginia, Inc., Castlewood, VA, for appellant. Robert Drum, Office of the General Counsel, Dept. of Health and Human Services, Philadelphia, PA, for appellee. ON BRIEF: Charlotte Hardnett, Chief Counsel, Region III, Steven M. Rollins, Asst. Regional Counsel, Office of the General Counsel, Dept. of Health and Human Services, Philadelphia, PA; Robert P. Crouch, Jr., U.S. Atty., John F. Corcoran, Asst. U.S. Atty., Roanoke, VA, for appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and HALL and LUTTIG, Circuit Judges.

Affirmed by published opinion. Judge HALL announced the judgment of the court and wrote an opinion, in which Justice POWELL joined with respect to Part III.A. only. Justice POWELL wrote an opinion concurring in part and concurring in the judgment. Judge LUTTIG wrote an opinion concurring in the judgment.

OPINION

K.K. HALL, Circuit Judge, announcing and concurring in the judgment:

For the reasons stated in Part III-A of this opinion, the judgment of the district court is affirmed. I write separately to explain that I cannot join Judge Luttig's opinion because it is not, in my view, faithful to the controlling precedents of this court.

I.

This circuit has battled the Secretary for many years over how to evaluate a disability claimant's subjective complaints of pain. Though a subjective allegation of pain, standing all alone, "shall not be conclusive evidence of disability," ¹ where the claimant proves the existence of a medical condition that could cause pain, the claimant's subjective complaints must be considered by the Secretary, and these complaints may not be rejected merely because the severity of pain cannot be proved by objective medical evidence. Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir.1990); Hyatt v. Sullivan, 899 F.2d 329 (4th Cir.1990) [Hyatt III ]; Walker v. Bowen, 889 F.2d 47 (4th Cir.1989); Foster v. Heckler, 780 F.2d 1125 (4th Cir.1986); Myers v. Califano, 611 F.2d 980 (4th Cir.1980). The Secretary's refusal to follow this circuit's precedents has cost the government hundreds of thousands of dollars in attorneys' fees. E.g., Hyatt v. Shalala, 6 F.3d 250 (4th Cir.1993) [Hyatt IV ]; Thompson v. Sullivan, 980 F.2d 280 (4th Cir.1992). Today, with the battle all but won, Judge Luttig would surrender the field.

In Hyatt III, we ordered the Secretary to apply this comprehensive standard (899 F.2d at 337):

Once an underlying physical or mental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of producing pain is shown, subjective evidence of the pain can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not determinative.

Rather than hew to this comprehensive, controlling standard, Judge Luttig has isolated a single snippet from the statute, regulation, and our cases--there must be objective evidence showing the existence of a medical impairment that could reasonably be expected to produce "the pain alleged"--and has interpreted it to mean "the [degree of] pain alleged." On the contrary, I interpret it, as this circuit consistently has, to simply require a causal connection between the pain and the objectively diagnosed medical condition. ² E.g., Hyatt v. Heckler, 807 F.2d 376, 379 (4th Cir.1986) [Hyatt II] ("administrative law judges should evaluate the effect of pain on the claimant's ability to work when the pain results from a medically diagnosed physical ailment even though the pain's intensity is shown only by subjective evidence" (emphasis added)), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 41 (1987). In other words, objective medical evidence of a peptic ulcer may require an ALJ to weigh the claimant's allegation of stomach pain but not his allegation of constant headaches.

In Foster, so heavily relied on by Judge Luttig, we specifically rejected his position (780 F.2d at 1129):

The district court affirmed the ALJ's decision, reasoning that the treating physician failed to make a specific finding that Foster's physical condition would result in the degree of pain alleged. These holdings, requiring that there be a direct tie between objective medical findings and a specific level of pain, go beyond the pain standard.

Judge Luttig would require the "direct tie" between the degree of pain and objective medical findings we eschewed in Foster. I believe that this analysis is wrong, and, even if I did not, I believe that relying upon it to uphold the Secretary's decision would overstep the strictures placed on a panel by the binding precedents of our court.

II.

In this case, the ALJ first denied benefits based on SSR 88-13, which this court declared invalid because it adhered to the Secretary's discredited standard. Hyatt III, 899 F.2d at 336. The Appeals Council remanded, directing the ALJ to reconsider Mickles' subjective complaints of pain under this circuit's law. On remand, the ALJ did not cite any law, case, or regulation to explain how he was evaluating pain. He found that Mickles' testimony of disabling pain was not credible:

With regard to her joint pain, peptic ulcer and gastrointestinal disease, and headaches, the claimant's testimony alleges pain and symptoms, which if accepted as credible would be of disabling proportion. However, with regard to these three conditions, the claimant's allegations of pain and symptoms are found not to be credible. First, with regard to all three of these conditions, as previously discussed, the objective medical evidence does not reflect conditions of such severity. While the medical evidence does support a finding that the claimant has a severe impairment with regard to joint pain, peptic ulcer and gastrointestinal disease, and headaches, it does not support a finding of a condition creating symptoms of such severity as those testified to by the claimant.

Mickles argues that this reasoning, though couched as an attack on the credibility of her subjective complaints, is really just a thinly veiled resurrection of the Secretary's practice of requiring objective proof of the severity of pain. I agree with Mickles. There is no practical difference between requiring a claimant to prove pain through objective evidence and rejecting her subjective evidence because it is not corroborated by objective evidence.

III.

A.

On the other hand, the ALJ did not just rest on the absence of objective proof of pain. In an extended, comprehensive discussion, he cited many additional reasons, all derived from the circumstances of Mickles' everyday life, for finding her testimony not credible:

(1) Mickles said that her stomach pain was so bad that she had trouble eating, but the record showed that she is well-nourished and has not lost weight over the years.

(2) Mickles had not seen a doctor for over a year for her supposedly constant joint pain, and had made only one trip to the emergency room for her tension headaches.

(3) Mickles used only relatively mild over-the-counter medication for her joint pain, and no medication at all for headaches.

(4) An August, 1990, clinic report showed that Mickles complained of having headaches only once every three weeks or month, and that she controlled them by taking Fiorinal and lying down. The ALJ wondered aloud why Mickles would stop taking the Fiorinal if her headache problem had intensified to a constant condition.

(5) The only "medication" Mickles takes for her ulcers is Rolaids.

(6) Her acute bouts with ulcers have been episodic, and she has always responded quickly to treatment.

(7) She does a wide range of housework.

B.

This refreshing mode of analysis is precisely what I believe our cases have been striving for. The only fair manner to weigh a subjective complaint of pain is to examine how the pain affects the routine of life. See Hunter v. Sullivan, 993 F.2d 31 (4th Cir.1992) (claimant's failure to fill prescription for painkiller, which itself was indicated for only mild pain, and failure to follow medical and physical therapy regimen supported ALJ's inference that claimant's pain was not as severe as he asserted).

Because the ALJ conducted the proper analysis in a comprehensive fashion and cited substantial evidence to support his finding, and because there is no question but that he would have reached the same result notwithstanding his initial error, I would affirm. I therefore concur in the judgment.

The judgment is affirmed.

AFFIRMED.

POWELL, Associate Justice, concurring in part and concurring in the judgment:

The only question we must decide is whether substantial evidence supports the Secretary of Health and Human Services's finding that Mickles is not disabled. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1992) (per curiam) (citing 42 U.S.C. Sec. 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.1987)). Appellant Mickles principally claims that the Administrative Law Judge ("ALJ"), in making his...