Varney v. Secretary of Health and Human Services

• Decision Date: 11 December 1987
• Docket Number: No. 87-6075,87-6075
• Citation: 859 F.2d 1396
• Parties: , 23 Soc.Sec.Rep.Ser. 383, Unempl.Ins.Rep. CCH 14225A Betty L. VARNEY, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1396

859 F.2d 1396

57 USLW 2276, 23 Soc.Sec.Rep.Ser. 383,

Unempl.Ins.Rep. CCH 14225A

Betty L. VARNEY, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 87-6075.

United States Court of Appeals Ninth Circuit.

Submitted Dec. 11, 1987 ^*.

Decided Oct. 21, 1988.

Steven L. Whiteside, Law Offices of Edmund Parent, Santa Barbara, Cal., for plaintiff-appellant.

Nancy E. Wever, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, Cal., for defendant-appellee.

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

Before BROWNING, HUG and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

In our first opinion in this case, Varney v. Secretary of Health and Human Services, 846 F.2d 581 (9th Cir.1988) ("Varney I "), we reversed the denial of Betty Varney's application for social security disability benefits, and remanded her claim for further proceedings. Varney now presents us with a petition for rehearing in which she asks that we reconsider our remand order, adopt a rule followed by the Eleventh Circuit, and modify our order so as to require the immediate payment of benefits. We find Varney's argument both important enough to consider for the first time on rehearing, and in most respects persuasive. Accordingly we grant her petition for rehearing and award her the modified relief she now seeks.

I. Summary of Prior Proceedings

The claimant, Betty Varney, applied for social security disability benefits on the basis of heart disease, the aftereffects of two heart attacks and cardiac bypass surgery, hypertension, headaches, and chronic back and neck strain. At the hearing on her application, she testified extensively regarding the severity of her pain. Varney I, 846 F.2d at 582. According to the testimony of the vocational expert, if Varney actually experienced the pain she described, she would be unable to work; thus, if her testimony were believed, Varney would clearly be entitled to benefits. However, the Administrative Law Judge ("ALJ") found Varney's pain testimony not credible and denied her application for benefits. Varney appealed the ALJ's decision to the district court, which granted summary judgment for the Secretary. Id. at 583.

On appeal, Varney argued to this court that the Secretary committed legal error by failing to give specific reasons for discrediting her pain testimony, and we agreed. Our prior cases have held that, while the Secretary may choose to disregard or discredit excess pain testimony, ¹ the decision to do so must be supported by specific findings. Id. at 584; Gamer v. Secretary of Health and Human Services, 815 F.2d 1275, 1279 (9th Cir.1987); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.1986). Because the ALJ's finding as to Varney's pain testimony did not meet our standard, we granted Varney the relief she requested: a remand for further proceedings. Varney I, 846 F.2d at 584.

Varney then submitted a petition for rehearing, asking for the first time that we remand her claim with instructions directing the immediate payment of benefits. She urges us to adopt the rule of the Eleventh Circuit under which, if the Secretary's reasons for disbelieving pain testimony are inadequate, the testimony is held to have been accepted as true. She further argues that no purpose would be served by additional administrative proceedings. Before turning to the merits of these arguments, we must determine whether they may be raised for the first time in a petition for rehearing.

II. Raising Issues in a Petition for Rehearing

As a general rule, we will not consider issues that a party raises for the first time in a petition for rehearing. Escobar Ruiz v. Immigration and Naturalization Service, 813 F.2d 283, 285-86 (9th Cir.1987). We recognize an exception, however, for cases involving extraordinary circumstances. Id. at 286. In Escobar Ruiz, for example, we granted rehearing in order to allow the government to make an argument it had not initially raised. We noted that our initial decision was the first to consider the question whether the Equal Access to Justice Act applies to immigration proceedings, and that numerous claims would be made in reliance on that decision. We said that allowing an incorrect statutory interpretation to stand as controlling precedent "would constitute a disservice to all parties concerned." Id. We also observed that the government's failure to raise the issue initially was due to inadvertence or negligence, not willfulness. Id.

Admittedly we face a different situation here. The petitioner does not claim that our initial opinion was incorrect; nor is this a problem of statutory interpretation or a question of first impression. Nevertheless, this case also represents a "special situation" warranting reconsideration. See id. The issue raised by the petitioner is a pure question of law. Moreover, it is an important issue of more than limited applicability; its resolution is certain to affect a number of social security claimants, at least some of whom may now be experiencing unwarranted difficulties in the application process. We also note that the petitioner has alleged improper delay on the part of the Social Security Administration in awarding benefits to deserving claimants. It has already been well over five years since Varney herself initially applied for benefits, and her situation is not atypical. Applicants for disability benefits generally suffer from crippling conditions that preclude them from earning a living wage; they often have no other source of income and can experience tremendous financial difficulties while awaiting the outcome of their appeals and proceedings on remand. See Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir.1983). If Varney is indeed eligible for disability benefits, there is no way to cure the deprivation she has already suffered as a result of the agency's denial of her application. See id. We have no wish to further delay the payment of deserved and much-needed benefits, to Varney or to others in her situation, by declining to resolve this issue now.

Finally, as in Escobar Ruiz, we see no indication that the petitioner's failure to raise this issue initially was willful. In short, we find this issue to be sufficiently urgent to warrant initial consideration on rehearing under the "extraordinary circumstances" exception.

III. Discussion of the Merits

A.

The rule in the Eleventh Circuit is that, "if the Secretary fails to articulate reasons for refusing to credit a claimant's subjective pain testimony, then the Secretary, as a matter of law, has accepted that testimony as true." Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.1987); see also MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.1986).

We have never before considered the merits of this rule. We have, however, repeatedly emphasized the important role pain testimony should play in the disability determination process, as well as the "highly idiosyncratic" nature of pain itself. Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986); see Cotton, 799 F.2d at 1407. In order to ensure that subjective pain testimony is accorded proper weight, and to allow us to properly perform our function of reviewing administrative decisionmaking, we require the ALJs to put forward specific reasons for discrediting a claimant's excess pain testimony. Varney I, 846 F.2d at 584; Gamer, 815 F.2d at 1279; Green v. Heckler, 803 F.2d 528, 532 (9th Cir.1986); Cotton, 799 F.2d at 1407.

We believe the Eleventh Circuit rule promotes the objectives we have identified in prior disability cases. Requiring the ALJs to specify any factors discrediting a claimant at the first opportunity helps to improve the performance of the ALJs by discouraging them from "reach[ing] a conclusion first, and then attempt[ing] to justify it by ignoring competent evidence in the record that suggests an opposite result." Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984). It helps to ensure that pain testimony will be carefully assessed and its importance recognized. See Howard, 782 F.2d at 1488. Moreover, it avoids unnecessary duplication in the administrative hearings and reduces the administrative burden caused by requiring multiple proceedings in the same case.

Perhaps most important, by ensuring that credible claimants' testimony is accepted the first time around, the rule reduces the "delay and uncertainty" often found in this area of the law, see Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983) (citation omitted), and ensures that deserving claimants will receive benefits as soon as possible. As already noted, applicants for disability benefits often suffer from painful and debilitating conditions, as well as severe economic hardship. Delaying the payment of benefits by requiring multiple administrative proceedings that are duplicative and unnecessary only serves to cause the applicant further damage--financial, medical, and emotional. Such damage can never be remedied. See Lopez, 713 F.2d at 1437. Without endangering the integrity of the disability determination process, a principal goal of that process must be the speedy resolution of disability applicants' claims. The Eleventh Circuit rule advances that goal.

At the same time, the rule does not unduly burden the ALJs, nor should it result in the wrongful award of benefits. Certainly there may exist valid grounds on which to discredit a claimant's pain testimony, and we have upheld such findings if properly made. See, e.g., Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.1985); Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir.1985). Where a claimant's allegations of pain are untruthful, the ALJ remains free under the Eleventh Circuit rule to make a specific and justifiable finding to that effect and to take that finding into account in making the determination of disability. But if grounds for such a finding exist, it is both reasonable and desirable to require the ALJ...