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Green v. Schweiker

December 7, 1984

MARION GREEN, APPELLANT
v.
RICHARD SCHWEIKER, SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES



On Appeal from the United States District Court for the Eastern District of Pennsylvania

Before: SEITZ and ADAMS, Circuit Judges, and FISHER, District Judge*fn*

Opinion OF THE COURT

Per Curiam.

This is an appeal from a grant of summary judgment in favor of the Secretary of the Department of Health and Human Services in a disability review action.

Marion Green, the appellant, asserts that the Administrative Law Judge (ALJ) (1) refused to apply this Court's subjective evidence standard in discounting her complaints of pain, and (2) failed to satisfy the burden of proof requirements of Rossi v. Califano, 602 F.2d 55, 58 (3d Cir. 1979), by applying medical-vocational regulation guidelines where non-exertional impairments are at issue. Because we agree with both of appellant's contentions, we will vacate the judgment of the district court and remand the matter for action consistent with this opinion.*fn1

I.

The claimant, a 49-year old woman weighing approximately 240 pounds, has an eleventh grade education and employment experience as a chambermaid and kitchen worker. She stopped working on a full-time basis in the mid-1960's, and ceased even part-time work in 1976. Her disability is based on the following conditions: back pain; hypertension; angina; arthritis of legs and joints; chest pains; diabetes; and varicose veins.

Appellant's treating physician, Dr. Weiser, submitted a medical report that supports her claims of diabetes, hypertension, and angina. The Secretary requested two consultative examinations: one in 1980, by Dr. Hanney, an osteopath, and one in 1982, by Dr. Carver, an internist. The Secretary's physicians confirmed that Green suffers from most of the ailments listed above, but nonetheless indicated that she was physically capable of the requirements of sedentary work. neither doctor specifically said that Green could perform sedentary work, but each completed "physical capacities evaluation" forms, setting forth the various physical components of sedentary, light and heavy work, without identifying them as such.

Green first applied for SSI disability benefits in April 1978. Her claim was denied, but upon her initial appeal to the district court she received a remand for reconsideration of the cumulative effect of her impairments, including the side effects of her medication.*fn2 On remand, the ALJ and Appeals Council again denied benefits. In his report, the magistrate found that the ALJ's discounting of claimant's subjective pain was supported by substantial evidence, that the ALJ had adequately considered the cumulative effect of claimant's impairments, and that the ALJ had sufficiently explained why he had chosen the reports of the Secretary's doctors over the opinion of claimant's treating physician. The district court approved the report and recommendation of the magistrate, and affirmed the denial of benefits.

II.

Claimant argues that the decisions of the Appeals Council and the ALJ violate the Third Circuit standard as to subjective pain. That standard requires (1) that subjective complaints of pain be seriously considered, even where not fully confirmed by objective medical evidence; Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971); (2) that subjective pain "may support a claim for disability benefits," Bittel, 441 F.2d at 1195, and "may be disabling," Smith, 637 F.2d at 972; (3) that where such complaints are supported by medical evidence, they should be given great weight, Taybron v. Harris, 667 F.2d 412, 415 n.6 (3d Cir. 1981); and (4) that where a claimant's testimony as to pain is reasonably supported by medical evidence, the ALJ may not discount claimant's pain without contrary medical evidence. Smith, 637 F.2d at 972.

Taken together, appellant maintains, these guidelines suggest that in certain circumstances subjective pain alone may be a sufficient basis for benefits, particularly where the ALJ cites no contrary medical evidence. While none of the cases previously decided by this Court directly so hold, claimant's interpretation is certainly reasonable; she finds direct support, moreover, in Rodriguez v. Schweiker, 523 F. Supp. 1240, 1244 (E.D. Pa. 1981), which states that "subjective pain, even if completely unconfirmed by the medical evidence, may nonetheless be of sufficient severity to consider [claimant] disabled." Both the ALJ and the Appeals Council reject this position. The ALJ wrote, "no proof of disability may be based solely on subjective complaints." The Appeals Council noted that Social Security regulation, 20 C.F.R. 404.1528(a) (1984), "expressly states that symptoms are the claimant's own description of physical or mental impairment and such statements alone are not enough to establish that there is a physical or mental impairment." On the basis of that regulation, the Appeals Council concluded that "a claimant will never be found disabled based on symptoms, including pain, unless medical findings show that there is a medical condition that could be reasonably expected to produce those symptoms."

Green urges that the Secretary's position constitutes non-acquiescence in prior decisions by this Court. In support of this contention appellant quotes a letter from the Chief Administrative Law Judge specifically ordering ALJs not to follow contrary judicial decisions regarding the subjective pain standard. While we question the legitimacy of non-acquiescence as a general matter, in this instance the Secretary has received temporary congressional approval for her stated policy. Section 3(a) of the Disability Reform Act states:

SEC. 3.(a)(1) Section 223(d)(5) of the Social Security Act is amended by inserting after the first sentence the following new sentences: "An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms 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. Objective medical ...


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