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880 F2d 1323 Higuera v. W Sullivan

880 F.2d 1323

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Emily HIGUERA, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, Secretary of Health and Human Services
*, Defendant-Appellee.

No. 88-2963.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 28, 1989.
Decided July 26, 1989.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.

1

MEMORANDUM**

2

Appellant Emily Higuera appeals the district court's order of summary judgment affirming the decision by the Secretary of Health and Human Services denying her claim for disability benefits under 42 U.S.C. Secs. 402(e) & 423(d) (1982). We reverse the decision of the district court and remand the case for further administrative proceedings.

3

* The issue in this case is whether substantial evidence supports the Administrative Law Judge's (ALJ) determination that Higuera was not disabled and whether that determination was based on proper legal standards. Brawner v. Secretary of Health & Human Services, 839 F.2d 432, 433 (9th Cir.1988). Here, the ALJ determined that Higuera was not entitled to either disability benefits or widow's benefits. We will consider the disability benefits determination first.

4

To qualify for disability insurance benefits, Higuera must prove that she is unable to "engage in any substantial gainful activity" attributable to a "medically determinable physical or mental impairment ... which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. Sec. 1382c(a)(3)(A). Higuera bears the initial burden of proving that her impairments prevent her from engaging in her previous job as a bacon scooper. See 42 U.S.C. Sec. 1382c(a)(3)(B); Sanchez v. Secretary of Health & Human Services, 812 F.2d 509, 511 (9th Cir.1987).

5

Here, the ALJ determined that Higuera was capable of returning to her past job and thus was not disabled. At the administrative hearing, Higuera testified that she suffers from debilitating pain due to a number of different ailments. Higuera contends that the ALJ committed reversible legal error by improperly discounting this testimony. The ALJ may discount a claimant's pain testimony when the claimant fails to submit objective medical findings that establish a medical impairment that would normally produce the claimed pain. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.1986); 42 U.S.C. Sec. 423(d)(5)(A). However, if there are objective medical findings which establish a medical impairment that would normally produce some amount of pain, but the claimant testifies that she suffers more pain than would be expected ("excess pain"), the ALJ may discount that testimony only by making specific and justifiable findings to support his decision. Varney v. Secretary of Health & Human Services, 859 F.2d 1396, 1399 (9th Cir.1988) (Varney II ); see also Cotton, 799 F.2d at 1407. In those findings, the ALJ must "convincingly justify his rejection" of the claimant's excess pain testimony. Bellamy v. Secretary of Health & Human Services, 755 F.2d 1380, 1382 (9th Cir.1985).

6

Here, it is undisputed that Higuera suffers from medical impairments that would produce some degree of pain. However, in discounting Higuera's excess pain testimony, the ALJ simply noted that the objective medical evidence did not support Mrs. Higuera's complaints of pain. That is insufficient. The case law makes it very clear that the ALJ may not disregard the claimant's excess pain testimony simply because it is unsupported by the objective medical evidence. In Cotton, we stated explicitly that excess pain, by definition, is "pain that is not supported by objective medical findings. If the Secretary were free to disbelieve excess-pain testimony solely on the grounds that it was not supported by objective medical findings, then the Secretary would be free to reject all excess-pain testimony. This court has rejected that interpretation of Sec. 423(d)(5)(A)." Id.; see also Varney v. Secretary of Health & Human Services, 846 F.2d 581, 584 (9th Cir.1988) (Varney I ); Gallant v. Heckler, 753 F.2d 1450, 1452, 1454-55 (9th Cir.1984).

7

While the ALJ also noted that Mrs. Higuera had worked for several years despite the pain she suffered, he did not explain why he considered this to be relevant. Nor did he take into account her testimony that her pain was worsening or that her medical condition was deteriorating--albeit slightly. We note that the ALJ did not assert that slight deterioration cannot produce significant additional pain, probably because there was no evidence that would have supported such a conclusion. Rather, the ALJ simply stated that Mrs. Higuera's excess pain testimony was "slightly exaggerated". This certainly does not rise to the level of a "specific and justifiable finding" for disregarding excess pain testimony.1 Moreover, we note that we have difficulty understanding what the ALJ had in mind when he concluded that Higuera's pain testimony was "slightly exaggerated". Higuera testified that she suffered from severe pain that made it impossible for her to stand or sit for any extended period or to walk any distance. Her testimony, if correct, would appear to show that her pain made it impossible for her to work. Assuming arguendo that her testimony was "slightly exaggerated", that testimony would in all liklihood still support a conclusion that Higuera is incapable of returning to her past work, and is disabled.

8

We conclude that the ALJ committed reversible legal error by failing to give specific and justifiable reasons for disregarding Mrs. Higuera's excess pain testimony.2 We REVERSE the decision of the district court and the case is REMANDED with instructions that it be returned to the Secretary for further administrative proceedings.3

*

Louis W. Sullivan is substituted for his predecessor Otis R. Bowen, Secretary of Health and Human Services, pursuant to Fed.R.App.P. 43(c)(1)

**

This disposition is not suitable for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The Secretary suggests that we look to the district court's opinion to justify the ALJ's discounting of Mrs. Higuera's excess pain testimony. However, the Secretary cites no authority for the proposition that this court may rely on the reasons supplied by the district court rather than those given by the ALJ. To the contrary, it is the ALJ who must set forth the specific and justifiable findings. Varney I; Cotton. In any event, the district court also appears to have merely concluded that Mrs. Higuera's excess pain testimony was not supported by the objective medical evidence. See Dist.Ct.Op. at 7 (Higuera provided "no evidence indicating that this on-going condition changed or that there was some clinical reason why she would suddenly experience a marked increase in pain")

2

We also believe it is worth noting the contradictions in the ALJ's decision regarding Higuera's residual functional capacity. In the discussion section of his opinion, the ALJ twice stated that Higuera had the capacity to engage in light work. The Secretary's regulations define light work as requiring, inter alia, that the individual lift no more than 20 pounds. 20 C.F.R. Sec. 416.967(b) (1988). Notwithstanding the Secretary's unpersuasive protestation that the ALJ used the term "light work" to mean something other than what the Secretary's own regulations define it to mean, this would suggest that Higuera could not return to her past job as a bacon scooper because she testified without contradiction that that job required that she be able to lift up to 25 pounds. However, in his findings, the ALJ concluded that Higuera had the capacity to engage in heavy work, which is defined, inter alia, as requiring the ability to lift a maximum of 100 pounds, with frequent lifting and carrying of objects weighing up to 50 pounds. There is no evidence in the record that would support such a conclusion. These inconsistencies in the ALJ's decision would appear to present an independent basis for remanding the case

3

Because of our disposition of this case, we need not consider Higuera's other contentions of legal error with regard to her disability insurance claim. We note that Higuera had asked that the case be remanded for consideration of new evidence. The government contends that we should not consider this argument because Higuera failed to raise it in the district court. Given our conclusion that the ALJ committed reversible legal error by failing to discount properly Higuera's excess pain testimony, we need not decide whether the government is correct. Because the case is remanded on other grounds for further administrative proceedings and Higuera has attempted to present additional evidence which appears to be of direct relevance, Higuera should be afforded the opportunity to present additional evidence in the course of such proceedings

Higuera also sought widow's insurance benefits pursuant to 42 U.S.C. Sec. 402(e). Her claim was denied. She contends that the record on the question whether she met the disability standard under this section was inadequately developed. We do not decide this claim, nor do we decide any of the legal questions presented by Higuera. Again, because we are remanding the case for further administrative proceedings, additional evidence may be submitted on the issue of Higuera's widow's insurance benefit claim.