Caseflicks

Court of Appeals for the Ninth Circuit • 1991

Bunnell v. Sullivan

947 F.2d 341

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Takeaway

In short, Bunnell establishes that objective evidence must show an impairment capable of causing pain, but it need not independently prove the claimant’s asserted degree of pain; an ALJ who discredits pain testimony must give specific, record-supported reasons beyond the absence of full objective corroboration.

Background

Marcia Bunnell sought Supplemental Security Income under Title XVI. She submitted medical evidence that she had multiple hereditary exostoses—bony growths that caused outward-bending ankles—and testified that severe back pain lasted day and night. She said the pain prevented her from sitting for prolonged periods or remaining in one position for more than fifteen to twenty minutes.

The administrative law judge found Bunnell’s allegations of disabling pain not credible because the claimed severity was not supported by the medical record. The district court remanded to the Secretary. A Ninth Circuit panel, relying on a concurrence in Bates v. Sullivan, reversed the district court because it believed objective medical evidence had to corroborate the severity of the alleged pain. The Ninth Circuit granted rehearing en banc in Bunnell and the related case of Rice v. Sullivan to establish the governing standard for subjective pain testimony.

Issues

Issue #1

Whether a Social Security disability claimant must produce objective medical evidence corroborating the full severity of alleged pain.

Holding

No. Once the claimant produces objective medical evidence of an underlying impairment that could reasonably cause the alleged pain, the adjudicator may not reject the claimant’s account of pain solely because objective evidence does not fully corroborate its severity.

Reasoning

The court reaffirmed the standard from Cotton v. Bowen. A claimant cannot establish disability solely through subjective symptoms; the claimant must first show, through medically acceptable evidence, an impairment that could reasonably be expected to produce the alleged pain. But that threshold requirement does not demand objective proof of the precise intensity or disabling degree of pain.

The court read the 1984 amendment to 42 U.S.C. § 423(d)(5)(A), the Secretary’s regulations, and the governing policy consistently. Those authorities require medical evidence of an underlying impairment, then require the agency to consider all relevant evidence—including the claimant’s and physician’s statements about the intensity and persistence of pain. A rule requiring objective confirmation of pain’s severity would improperly make that broader inquiry unnecessary.

Pain is inherently subjective and cannot always be objectively measured. Congress recognized that medical science may not verify the degree of pain a particular person experiences. Requiring objective proof of the alleged severity would therefore deny benefits to some genuinely disabled people and would effectively strip subjective pain testimony of the role Congress preserved for it.

Issue #2

Whether the Bates concurrence’s stricter rule requiring objective evidence corroborating pain severity should govern Ninth Circuit disability cases.

Holding

No. The court overruled the Bates concurrence and held that it misconstrued the statute, regulations, legislative history, and Ninth Circuit precedent.

Reasoning

The Bates concurrence treated the statutory phrase requiring an impairment that could reasonably be expected to produce “the pain” alleged as requiring medical proof of the amount and severity of pain claimed. The en banc court rejected that reading because the statute requires a medically determinable impairment capable of causing the symptom, while also directing consideration of all other evidence bearing on the symptom’s intensity and persistence.

Earlier Ninth Circuit decisions—especially Cotton, Varney, and Gamer—already adopted the correct approach. Taylor and Miller did not conflict with Cotton because those cases rejected claims in which the claimant had not established an underlying impairment. Nyman also did not require objective proof of pain severity; it concluded only that the claimant’s pain testimony was not credible on that record.

The court also found broad support for the Cotton approach in other circuits’ pain cases. The governing distinction is between a claim based on pain alone, which is insufficient, and a claim supported by a medically established impairment, for which credible testimony may establish disabling severity even without full objective corroboration.

Issue #3

What findings must an administrative law judge make before discrediting a claimant’s pain testimony after the claimant establishes a qualifying impairment.

Holding

The administrative law judge may discredit the testimony, but only through specific findings supported by the record; lack of objective corroboration alone is insufficient.

Reasoning

The court emphasized that the Cotton rule does not require automatic acceptance of every pain allegation. An adjudicator may evaluate credibility using the whole record, but must identify specific permissible reasons so that a reviewing court can determine that the claimant was not arbitrarily disbelieved.

Social Security Ruling 88-13 supplied relevant factors for this credibility assessment: the pain’s nature, location, duration, frequency, and intensity; precipitating and aggravating factors; medication and its effects; other treatment; functional limitations; and daily activities. These factors allow a reasoned assessment without pretending that pain severity can always be medically measured.

The adjudicator may also rely on inconsistencies in testimony, relevant character evidence, daily activities that conflict with claimed limitations, or an unexplained failure to seek or follow treatment. But each ground must be specifically articulated and supported by the administrative record.

Issue #4

Whether the expiration of the 1984 statutory pain amendment undermined the continuing validity of the Cotton standard.

Holding

No. The amendment’s sunset provision did not displace the Cotton standard.

Reasoning

The court rejected the Bates concurrence’s view that Cotton interpreted only a temporary statutory amendment and therefore ceased to control after the amendment expired. Varney had rested on both the amendment and the Secretary’s regulations, not on the temporary provision alone.

The relevant regulations and the Secretary’s interpretation of them remained materially the same. Moreover, the sunset provision was intended to permit later congressional reconsideration after a study of pain evaluation, not to change the substantive standard already reflected in the regulations and precedent.

Issue #5

Whether Bunnell’s denial of benefits could stand when the administrative law judge rejected her pain testimony solely for lack of medical support for its claimed severity.

Holding

No. The district court’s remand to the Secretary was affirmed, and further proceedings had to apply the Cotton standard.

Reasoning

The administrative law judge rejected Bunnell’s disabling-pain account because it was not supported by the medical evidence of record. That rationale applied the impermissible Bates approach because it treated missing objective corroboration of severity as dispositive.

Because Bunnell had submitted medical evidence of an impairment that could cause pain, the agency was required to evaluate the credibility and functional effect of her testimony under the proper standard. The court therefore affirmed the district court’s remand for a new disability determination consistent with the en banc opinion.

Concurrences

Judge Kozinski

Reasoning

Judge Kozinski concurred only in the judgment because government counsel conceded at oral argument that remand was appropriate under Social Security Ruling 88-13, which had not been available when the administrative law judges decided these cases. In his view, that concession resolved the cases without any need to overrule Bates or decide the broader statutory question.

He argued that the majority departed from the statute and regulations. Reading their text directly, he believed they impose two objective requirements: proof of a medical condition and proof that the condition could reasonably be expected to produce the disabling pain alleged. In his view, the majority’s rule improperly reduces the second requirement to mere proof that pain is associated with an impairment.

Judge Kozinski also maintained that Congress made a policy choice to guard particularly against erroneous awards of disability benefits, even if that choice produces some erroneous denials. Courts, he argued, may not alter that balance because subjective pain is difficult to verify or because judges disagree with Congress’s policy judgment.

Finally, he argued that SSR 88-13 bound the Secretary even if it did not bind the courts. By adopting a judicially mandated Cotton rule rather than relying on the Secretary’s ruling and the government’s concession, the majority unnecessarily restricted the agency’s ability to revise its policy in a later ruling.