Summary
holding that ALJ must consider effectiveness of pain medication as a factor in assessing claimant's credibility regarding severity of pain that is not supported by medical evidence
Summary of this case from Ortiz v. ColvinOpinion
No. 86-1080.
Argued June 3, 1986.
Decided July 16, 1986.
Judith C. Saltzman, Boston, Mass., with whom Sarah Anderson, Greater Boston Legal Services, and Linda Landry, Neighborhood Legal Services, Lynn, Mass., were on brief, for plaintiffs, appellants.
Susan G. Winkler, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.
Appeal from the United States District Court for the District of Massachusetts.
Before CAMPBELL, Chief Judge, COFFIN and TORRUELLA, Circuit Judges.
This appeal has been brought by six named plaintiffs, suffering from a variety of ailments, who allege that defendant Secretary of Health and Human Services failed to consider properly their subjective claims of pain when he evaluated their ability to engage in substantial gainful employment. Consequently, they allege, their disability benefits under both Title II (Social Security Disability Insurance — SSDI) and Title XVI (Supplemental Security Income — SSI) of the Social Security Act, 42 U.S.C. §§ 401- 433, and §§ 1381-1385, were wrongfully terminated.
Plaintiffs' first amended complaint was filed in July, 1983. They sought certification of a class on several issues, including the propriety of the Secretary's evaluation of pain. On April 12, 1984, the district court, after certifying a class on one of the issues, denied certification with respect to the pain issue, concluding that plaintiffs had not shown that Fed.R.Civ.P. 23(a)'s requirements of numerosity, commonality, typicality and adequacy of representation had been satisfied. At the time of this ruling four of the named plaintiffs had been returned to payment status and were receiving disability benefits. Subsequently, in September, 1984, the district court reversed the Secretary's termination of the two remaining plaintiffs' benefits and restored them to payment status. In August, 1984, a seventh person, Frances Teague, who, unlike plaintiffs, had been denied initial benefits, sought to intervene.
In October, before the court ruled on the intervention request, Congress enacted the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (1984) (the Act). On November 7, 1984, the Secretary moved to dismiss the complaint, on the grounds that there were no remaining named plaintiffs with a pending claim on the pain issue and that the new Act established a clear and presently applicable standard of evaluating pain. On December 4, 1984, plaintiffs filed their second amended complaint, alleging principally that the Secretary's Social Security Ruling 82-58 (SSR 82-58) violated the new Act. SSR 82-58, which we shall later examine in some detail, was characterized as requiring "in all cases so-called 'objective' documentation not merely of the cause of subjectively felt pain, but also of its intensity." (Emphasis in original.) The new complaint also alleged that the plaintiffs represented a class consisting of every Massachusetts disability benefits applicant with a physical or mental abnormality which causes pain whose claim was or will be denied or terminated "because the Secretary . . . relied, at least in part, upon an absence or lack of clinical findings in determining that the pain is not disabling." The prayers for relief were that SSR 82-58 be declared illegal and that a declaratory judgment proscribe the Secretary from conditioning disability benefits for "persons with medically documented abnormalities that cause pain . . . [on] 'objective' or clinical documentation of the intensity of the pain."
The resolution of allegations that 82-58 also violated case law from this circuit and the Secretary's own regulations would seem to be completely swallowed up by a resolution of the statutory violation issue.
The Act, after stating that a claimant's statement as to his pain "shall not alone be conclusive evidence of disability", requires first that
"there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment . . . which could reasonably be expected to produce the pain . . . alleged. . . ." 42 U.S.C. § 423(d)(5).
It then provides that disability is established if such findings
"when considered with all evidence . . . (including statements of the individual or his physician as to the intensity and persistence of such pain . . . which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability." Id.
The Act also calls for the appointment by the Secretary of a Commission on the Evaluation of Pain to conduct, in consultation with the National Academy of Sciences, a study concerning the evaluation of pain under Titles II and XVI.
On December 10, 1984, the district court issued a memorandum of decision dealing with a number of issues. The specific decision with which we are here concerned was the court's ruling that plaintiffs' pain claims had been rendered moot. The court made essentially three points: that the Act had established a standard for evaluating pain; that it adopted all of the Secretary's regulations and policies, including, impliedly, 82-58; and that in any event it would be premature to evaluate the policies before the Secretary had had an opportunity to measure them against the statutory standard.
This ruling appears to be the linchpin for the court's simultaneous denials of Teague's motion to intervene and of plaintiffs' motion to amend their first amended complaint to add a class action.
We confess that we would be troubled if the consistency of 82-58 with the Act were to be dispositive of this appeal. The Secretary draws comfort from a statement in the legislative history that Congress intended to adopt "the present regulatory policy on the use of evidence of pain in the evaluation of disability." 130 Cong.Record, H9829 (daily ed. Sept. 19, 1984). Plaintiffs, however, construe "regulatory" as a reference to only regulations, not to rulings. Our own view is that however expansive may have been the intent of Congress in embracing the Secretary's then existing policies, we see possible tension between the Act and 82-58.
The Act makes clear that, as a primary requirement, there must be a clinically determinable medical impairment that can reasonably be expected to produce the pain alleged. It then goes on to provide that other evidence including statements of the claimant or his doctor, consistent with the medical findings, shall be part of the calculus. If this second provision is to have any meaning, the statements of a claimant and his doctor must be additive to clinical or laboratory findings. This does not mean that any statements of subjective pain go into the weighing. For example, the Act would not permit the acceptance, as possibly decisive evidence of disability, of complaints of violent headaches from a claimant whose medically determinable impairment indicating the probability of pain was confined to the lower extremities. Nevertheless, so long as statements of a claimant or his doctor are not inconsistent with the objective findings, they could, if found credible by the adjudicator, permit a finding of disability where the medical findings alone would not.
Other courts have similarly read the Act. Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986); Foster v. Heckler, 780 F.2d 1125, 1128-29 (4th Cir. 1986); Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985); Green v. Schweiker, 749 F.2d 1066, 1068-70 (3d Cir. 1984). See also Herbert v. Heckler, 783 F.2d 128, 130-31 (8th Cir. 1986) (interpreting requirements of Act, regulations, and SSR 82-58 in light of settlement agreement set forth in Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984))
SSR 82-58 gives us pause. It seems to speak out of both sides of its mouth, the "objective only" side more than the side allowing consideration of certain "subjective" statements of pain. To begin, its "Policy Statement", reproduced in the margin, starts off with the basic requirement of an objectively established medical condition that could reasonably be expected to produce the pain claimed. Then it goes on to say that "symptoms are still not controlling" and that clinical and laboratory data must "reasonably account for the symptom." The clear inference is that these data are in addition to the findings of an impairment that could be a likely source of pain. If there were doubt on this score, the last three sentences quoted make it clear — or at least arguable — that any claim of intensity must be corroborated by, not merely be consistent with, clinical findings.
"Policy Statement: Symptoms will not have a significant effect on a disability determination or decision unless medical signs or findings show that a medical condition is present that could reasonably be expected to produce the symptoms which are alleged or reported. However, once such a medical condition (e.g., disc disease) is objectively established, the symptoms are still not controlling for purposes of evaluating disability. Clinical and laboratory data and a well documented medical history must establish findings which may reasonably account for the symptom in a particular impairment. Objective clinical findings which can be used to draw reasonable conclusions about the validity of the intensity and persistence of the symptom and about its effect on the individual's work capacity must be present. For example, in cases of back pain associated with disc disease, typical associated findings are muscle spasm, sensory loss, motor loss, and atrophy. There must be an objective basis to support the overall evaluation of impairment severity. It is not sufficient to merely establish a diagnosis or a source for the symptom."
The discussion in SSR 82-58 on determining Residual Functional Capacity (RFC) points the other way. It proceeds to recognize that "[s]ymptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective medical findings alone." Consideration should, it continues, be given "alleged frequency and duration of [pain]" as well as precipitating factors, effect on daily activities, dosage and effects of medication, and recorded observations of others. And denial decisions must state why subjective testimony of limitation of function because of pain is not supported by the evidence.
Finally, uncertainty is compounded by the two examples described, No. 1 "Effects of Pain Supported by the Evidence" and No. 2 "Effects of Pain Unsupported by the Evidence." We have attempted our own comparative summary in the Appendix. The only clear objective difference we see between the two examples is the presence of muscle spasm of paraspinal muscles in Example 1 and its absence in Example 2. This is apparently the one factor — neither Example showing any sensory or motor loss, leg pain, or muscle wasting — that 82-58 deems sufficient to overcome the stronger factors in Example 2 — the evidence of guarded movements, the treating physician's strong opinion that claimant could do no work, and the claimant's professed inability to do any household chores. We confess as laymen that our reading of these examples indicates an extreme insistence on objective medical findings to corroborate subjective testimony of limitation of function because of pain. We suspect that SSR 82-58 may encourage adjudicators to require a closer nexus between complaints of pain and observable medical findings than the Act now contemplates.
We are fortunately spared the task of making a definitive ruling on the compatibility between SSR 82-58 and the Act. On August 1, 1985, the Secretary issued instructions for its Program Operations Manual System (POMS), DI T00401.570. This is a seven page circular, its purpose being "to ensure that all adjudicators understand and consistently apply the existing policy (now codified in statute) for the evaluation of pain. . . ." Notwithstanding this disclaimer of policy change, it is obvious to us that the POMS instructions go considerably beyond 82-58 in recognizing subjective testimony of pain.
The instructions specifically contemplate a possible finding of disability in a case "where the degree of pain alleged is significantly greater than that which can be reasonably anticipated based on the objective physical findings. . . ." In such cases a further exploration of other information is "consistent with recent court decisions, as well as with the statutory language [requiring consideration of statements of claimant or his physician consistent with medical findings]." Specifically, when there is a claim of pain not supported by objective findings, the adjudicator is to "obtain detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant, his/her physicians from whom medical evidence is being requested, and other third parties who would be likely to have such knowledge." Further, "it is essential to investigate all avenues presented that relate to subjective complaints. . . ."
Finally, the examples set forth in POMS DI T00401.570F are not only much more general (leaving arguably more latitude to the adjudicator), but conclude with Example 2, a case where (1) the objective medical evidence does not substantiate the alleged degree of limitation due to pain, and (2) a further review of the medical evidence fails to show any objective findings typically associated with the limiting pain alleged. In such a case the adjudicator cannot stop, but
"must be aware that symptoms, such as pain, can result in greater severity of impairment than may be clearly demonstrated by the objective physical manifestations of a disorder. Thus, before a complete evaluation of this individual's RFC can be made, a full description of the individual's prior work record, daily activities and any additional statements from the claimant, his or her treating physician or other third party relative to the alleged pain must be considered. Only then is it possible to fully assess whether the pain is reasonably consistent with the objective medical findings and to determine RFC."
We have no doubt that these instructions correct whatever shortcomings existed in SSR 82-58 and conform faithfully to the Act. But plaintiffs oppose our consideration of POMS. They argue, first, that POMS is not binding on administrative law judges or the Appeals Council, citing legislative history of the Act. H.R. Rep. No. 98-1039, 98th Cong., 2nd Sess. 35, reprinted in 1984 U.S. Code Cong. Ad.News 3038, 3080, 3093. Whatever may be the ordinary effect of POMS, these instructions have been presented to us unequivocally as the Secretary's policy and interpretation. We cannot believe that such a deliberate effort to "clarify" SSR 82-58 and its Example 2 would be intended to guide only the deciders of first instance. We therefore construe POMS DI T00401.570 as being the latest word on departmental pain policy, committing the Secretary and superceding any inconsistent discussion and examples.
His brief on appeal contains the following passages: "In the interim period [before the advent of new policies pursuant to the Pain Commission's report and actions of Congress], the Act and the Secretary's regulations, as explained in SSR 82-58 and as further articulated in the new POMS instruction is the national policy on pain." (p. 20) (emphasis supplied). "In the new POMS instructions, the Secretary also clarifies Example 2 of SSR 82-58. In particular, the Secretary notes that the adjudicator must be aware that 'symptoms, such as pain, can result in greater severity of impairment than may be clearly demonstrated by the objective physical manifestations of a disorder.' " (p. 21.)
Moreover, his counsel made the following oral argument to us:
"In August of 1985 after the district court ruled on the motion for reconsideration, the POMS instructions and circular were published. . . . and the Secretary shifted somewhat the degree of weight given. . . . to the subjective complaint of pain. . . .
. . . .
"I would argue that the plaintiff's claims are moot because the Secretary does what they've asked . . . them [sic] to do, and in particular I would direct your attention to the plaintiffs' second amended complaint where the relief they asked for in this case is a declaratory judgment that the defendants [sic] will not require objective documentation of the intensity of pain as a necessary precondition of benefits. If you look at the POMS instructions and SSR 82-58 in their entirety, they do not require such objective documentation regarding the intensity as a necessary precondition. The subjective complaints of pain can be believed. But the adjudicator is directed to take into account all the evidence. . . ."
Although ordinarily we would find no need to publish an administrative publication as an addendum to our decision, we do so in this case because it has been brought to our attention that POMS directives are not always available to the public and because the Secretary relies so substantially in this case on the content of POMS DI T00401.570.
Plaintiffs, in their reply brief, have included an affidavit from Kasper Goshgarian, the Deputy Commissioner of the Massachusetts Rehabilitation Commission, the official responsible for making disability determinations for SSI and SSDI applicants. As of May 1, 1986, he avers, the application of SSR 82-58 "will continue to result in denial of benefits to persons with underlying complaints of pain if they are unable to provide 'objective' medical documentation or clinical tests showing the extent of the pain and the extent of the functional limitation caused by the pain." He also states that the POMS instructions were not distributed to his agency until March or April, 1986, and, in any event, "have not removed this bottom line requirement of objective medical documentation of pain."
As stated above, we reach a different conclusion as to the impact of the POMS instructions in this case, and we cannot permit the statement of an official that is at odds with the stated policy of the Secretary to constitute a sufficient indication of vital signs in a controversy to preclude a ruling based on mootness. At the same time, however, having found mootness based on the Secretary's assertion that the evaluation of pain will be made consistently with the POMS, we would not countenance any decision by the Secretary contrary to the liberalized modification of SSR 82-58 as contained in the POMS instructions.
Plaintiffs also urge that we consider the POMS instructions as new evidence not properly a part of the record on appeal. But the instructions are not evidence relevant to the case at issue in the district court, but rather the event which removes that issue as a case or controversy. They are like a "statute passed during the course of litigation [which] may make unnecessary a determination of the former controversy." 6A J. Moore, Moore's Federal Practice, ¶ 57.13, at 57-127 (2d ed. 1985) (footnote omitted). More precisely, the instructions constitute "an interpretation, not previously made, of the challenged [ruling]", which moots the controversy. Free v. Landrieu, 666 F.2d 698, 703-04 (1st Cir. 1981). See also Thorpe v. Housing Authority, 386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967) (petitioner tenant protested cancellation of tenancy without notice; Court vacated and remanded case because of subsequent HUD directive to local housing authorities requiring notice, reasons, and opportunity to reply); Rural America, Inc. v. Donovan, 597 F. Supp. 319, 321-22 (D.D.C. 1984) (Department of Labor's assertion in brief and at hearing that organizations like plaintiff are entitled to due process hearing moots suit based on lack thereof); Vann v. Housing Authority of Kansas City, Mo., 87 F.R.D. 642, 657-658 (W.D.Mo. 1980) (city housing authority, with approval of HUD, adopted new tenant assignment policy, mooting the controversy). We add that there has been no indication that the issue raised by plaintiffs meets the twofold test of being "capable of repetition, yet evading review." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975).
We therefore hold that plaintiffs' challenge to SSR 82-58 is now moot, if it has not been so earlier. We therefore remand with orders to vacate the judgment and dismiss the complaint.
No costs.