Marcia C. BUNNELL, Plaintiff-Appellee, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellant

Bunnell’s application for supplemental security income (SSI) benefits under Title XVI of the Social Security Act (Act) was denied by the Secretary of Health and Human Services (Secretary). On appeal, the district court remanded the case to the Secretary, concluding that the administrative law judge (ALJ) had failed to make findings sufficient to reject Bunnell’s claims of disabling pain. The Secretary now appeals the district court’s remand order. The district court exercised jurisdiction pursuant to 42 U.S.C. § 405 (g). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . See Stone v. Heckler, 722 F.2d 464, 467-68 (9th Cir.1983). We reverse.

I

Bunnell is a 45 year old divorced woman with a high school education. She has a history of multiple hereditary exostoses. Exostoses are bony growths projecting outward from the surface of a bone, characteristically capped by cartilage. Bunnell’s condition resulted in the development of valgus, i.e., bent outward, ankles, which in turn resulted in leg pain. In order to re *1151 lieve her symptoms, Bunnell underwent surgery on her left ankle in 1977. Although, initially, Bunnell had some problems with pain control,…

dissenting:

I respectfully dissent.

The majority holds that the Secretary’s conclusion that objective medical evidence does not support Bunnell’s claims of disabling pain is sufficient to justify the denial of SSI benefits. They acknowledge that this formulation of the law conflicts with the “Varney-Gamer-Cotton line of cases” but *1156 argue that these cases are inapplicable here since their reasoning is based on a now defunct statutory provision, 42 U.S.C. § 423 (d)(5)(A). See Bates v. Sullivan, 894 F.2d 1059, 1071-72 (9th Cir.1990) (Wright,, J., and Wallace, J., concurring). According to the majority, subjective pain testimony is now evaluated under 20 C.F.R. § 416.929 which allows the Secretary “to disregard complaints of pain which are not supported by, or which are inconsistent with, medical findings.” Id. at 1068 (Wright, J., and Wallace, J., concurring).

I sharply disagree with the notion that Varney-Cotton-Gamer line is no longer good law. While the majority may be correct that 42 U.S.C. § 423 (d)(5)(A) has expired due to sunset legislation, they err in suggesting that Varney’s pronouncement on the evaluation of pain testimony relied exclusively on that statute. A…

912 F.2d 1149 31 Soc.Sec.Rep.Ser. 53, Unempl.Ins.Rep. CCH 15686A Marcia C. BUNNELL, Plaintiff-Appellee, v. Louis W. SULLIVAN, * Secretary of Health and Human Services, Defendant-Appellant. No. 88-4179. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 8, 1989. Decided Aug. 30, 1990. Kathryn A. Warma, Asst. Regional Counsel, Dept. of Health and Human Services, Seattle, Wash., for defendant-appellant. Elie Halpern, Halpern, Smith & Bailey, Rochester, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before WALLACE and NELSON, Circuit Judges, and WILSON, ** District Judge. WALLACE, Circuit Judge: 1 Bunnell's application for supplemental security income (SSI) benefits under Title XVI of the Social Security Act (Act) was denied by the Secretary of Health and Human Services (Secretary). On appeal, the district court remanded the case to the Secretary, concluding that the administrative law judge (ALJ) had failed to make findings sufficient to reject Bunnell's claims of disabling pain. The Secretary now appeals the district court's remand order. The district court exercised jurisdiction pursuant…