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

NELSON, Circuit Judge,

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 careful reading of that case indicates that it interpreted not only the enabling statute but its accompanying regulation, 20 C.F.R. § 404.1529 (1987). See Varney, 846 F.2d at 583. The wording of this regulation, which still exists today in unmodified form, is identical to that of 20 C.F.R. § 416.929 , interpreted here by the majority. Moreover, the Varney court’s understanding of this regulatory language was affirmed the following year by this court in Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir.1989). Thus, the conclusion is inescapable that prior to both Bates and the instant case this circuit has interpreted, on more than one occasion, the language of 20 C.F.R. § 416.929 in a manner antithetical to that urged here. We cannot disregard the weight of this precedent.

Accordingly, under Ninth Circuit precedent the Secretary must make specific findings which do not rely wholly on objective medical evidence when he rejects appellee’s complaints of disabling pain. Hammock, 879 F.2d at 502 ; Gamer, 815 F.2d at 1275; Cotton, 799 F.2d at 1407. Of the seven factors noted by the AU to support his finding of noncredibility, three refer to objective medical criteria and hence cannot form the basis of the credibility determination in and of themselves. 1 Appellee's “daily activities” constitute a fourth factor, but nowhere does the decision discuss the range of these activities to refute appel-lee’s allegation of disabling pain. 2 On the contrary, the AU notes that due to an arthritic condition in her hand, Bunnell “us[es] only light utensils and limits her physical efforts in all her daily living activities.” 3 In re Bunnell, No. 541-50-9512 (Oct. 16, 1986), at 3.

The AU also referred to “plaintiff’s appearance of testimony at the hearing.” While it is appropriate to consider a claimant’s general appearance in assessing credibility, see Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.1975), the reference is sufficiently cryptic to require further explanation if it is to be of use in justifying the AU’s finding that Bunnell’s testimony lacked credibility.

The remaining factors cited by the AU as influencing his decision are “the opinion of treating examining physicians” and “the impression of the medical advisor.” In re Bunnell at 6. In this regard, the AU discussed both the opinions of various physicians who had treated Bunnell through 1984 and the objective medical evidence on which their opinions were based. He also *1157 discussed at length the conclusions reached by Dr. Scott Linder, the court medical ad-visor. 4 After reviewing Linder’s observations with respect to the medical evidence, the AU noted that Linder concluded that nothing in the medical records “suggests] that (Bunnell) has a functional degree of limitation or physical disability or anything that would, on an objective basis, prevent her reasonably continuous gainful employment.” In re Bunnell at 6 (emphasis added).

While supportive of the AU’s discrediting of appellee’s claims of excess pain, Linder’s conclusions are insufficient in and of themselves to justify such a finding as they appear to be based on purely objective data. This is not to say that the AU may not accept and rely on the opinion of Linder and various treating physicians; such testimony cannot, however, be the sole basis of his rejection of appellee’s claims if it is based solely on a consideration of objective medical data. See, e.g., Hammock, 879 F.2d at 502 ; Gamer, 815 F.2d at 1275.

Most significantly, the AU's decision fails to explain its rejection of the conclusions reached by Dr. Whelan J. Orchard, appellee’s most recent treating physician. The majority concurs in this assessment, but holds that the Appeals Council cured any defect by adequately explaining why it discounted Orchard’s opinion. I disagree.

The Secretary may disregard the opinion of a treating physician only if he sets forth “specific, legitimate reasons” for doing so. Magallenes, 881 F.2d at 751. “This burden can be met by providing a detailed summary of the facts and conflicting clinical evidence, along with a reasoned interpretation thereof.” Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir.1989); Cotton, 799 F.2d at 1408.

The Appeals Council noted that “[wjhile Dr. Orchard has indicated that [Bunnell is] unable to work and [is] unemployable, his opinion is not uncontradicted since Drs. Poulson, Klein, and Kranz all felt [Bunnell was] capable of some kind of work activity.” In re Bunnell, 541-50-9512 (Sept. 28, 1987), at 6. This bald statement, without more, is plainly insufficient to reject the opinion of Dr. Orchard who treated Bunnell for a two-year period after she was seen by Poulson, Klein and Kranz. The Council provides no detail whatsoever as to the relevant facts and conflicting clinical evidence and engages in no “reasoned interpretation” at all. Thus, it is impossible to conclude that this statement constituted a “specific, legitimate reason” for rejecting Orchard’s opinion.

The Council also stated that while Orchard claimed that Bunnell’s “ability to stand and/or walk or sit off and on for a total of 6 hours in an 8-hour day is absent ... [t]he clinical and laboratory findings furnished by Dr. Orchard ... do not support his opinion as to [her] residual functional capacity.” Id. at 5-6. As with the previous statement, this general, concluso-ry language is simply not enough to justify rejecting Orchard’s opinion. The Council neither identified the clinical findings to which it was referring nor indicated why it believed that this evidence did not support the doctor’s conclusions.

Accordingly, and in sum, I cannot conclude that the Secretary has furnished “clear and convincing” reasons, see Rodriguez, 876 F.2d at 762 , for rejecting the opinion of treating physician Whelan J. Orchard.

Finally, the Secretary does not come to grips with Varney’s exhortation to “isolate particular complaints of pain and discuss the evidence suggesting that these complaints are not credible.” 846 F.2d at 584. Indeed, the Secretary does not attempt to argue that the decision is sufficient in this regard. Instead, he urges the court to fashion a “reasonableness” test which would not require him to detail the reasons for rejecting pain complaints where, as here, the reasons are “obvious *1158 and overwhelmingly supported in the record.”

This post-hoc attempt to avoid the impact of Varney is misguided, as the rejection of Bunnell’s claim does not find unequivocal support in the record. The opinion of treating physician Orchard, discussed above, is evidence enough of that. The Secretary’s proposed modification of the standard for rejecting claims of disabling pain is, moreover, objectionable on public policy grounds. If implemented, it would erode claimants’ due process rights by allowing the agency to determine when and if they are entitled to an explanation of the denial of claims based on disabling pain. Appellate courts would be forced, in addition, to “second-guess” the reasoning of the administrative law judges and to pour through the administrative record to ensure that there is support for the agency’s summary dismissal of claims. I would hesitate to impose this burden on the courts.

Conclusion

I would affirm the district court holding that the Secretary’s decision rejecting Bun-nell’s complaints of disabling pain was insufficiently specific and detailed under applicable Ninth Circuit law. Because I believe that the Varney-Gamer-Cotton line of cases is still good law, I disagree with the majority that an individual’s complaints of disabling pain may be discredited on the basis of objective medical evidence alone. We have repeatedly recognized that “pain is a highly idiosyncratic phenomenon, varying according to the pain threshold and the stamina of the individual victim.” Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986); see also, e.g., Cotton, 799 F.2d at 1407; Varney, 846 F.2d at 581. In light of the highly subjective nature of pain, we have required the Secretary, when rejecting claims of disabling pain, to make specific findings not based exclusively on objective considerations. By holding to the contrary, the majority has in effect redefined pain as a purely objective phenomenon and rendered pain testimony, “in the final analysis, almost superfluous.” Cotton, 799 F.2d at 1407. This trivialization of pain testimony not only flies in the face of a number of our decisions of the past several years, it will result in the unjust denial of benefits to many deserving, disabled Americans.

. Those factors are (1) clinical findings, (2) x-rays, and (3) the long-standing nature of Bun-nell's abnormalities.

. While at her administrative hearing appellant testified that she has engaged in a number of daily activities — e.g. cooking, cleaning, clerical work, attending classes — since the onset of her disability in 1977, we have no way of knowing whether the ALJ relied on this testimony since it is not expressly referred to in his decision.

. The summary treatment of appellee’s daily activities distinguishes the instant case from Fair v. Bowen, 885 F.2d 597 , where the ALJ referred to specific activities which the claimant performed during the time in which he allegedly suffered from disabling pain. The court noted, to this end, that the claimant "testified that ‘he remains capable of caring for all his own personal needs, the performance of his own routine household maintenance and shopping chores, riding public transportation, and driving his own automobile.’ ” Fair, 885 F.2d at 604 (quoting In re Fair, No. 541-24-0650 (Mar. 28, 1986), at 3).

. Linder’s conclusions were based on his observation of Bunnell at the hearing and his review of the medical evidence including additional medical records submitted after the hearing by John E. Hovencsek, D.P.M., Mark Van Hemert, D.C., and Whelan J. Orchard, M.D. In re Bunnell at 5.