Pain (11 page)

Medical experts sharply disagreed about the legitimacy of Page's complaint. Their differences illuminated just how difficult it was for authorities to reach consensus or to judge pain by standards untouched by cultural biases and social considerations. Her own osteopathic physician had diagnosed her condition as osteoarthritis “with significant rheumatoid arthritis in the fingers of both hands.” She had complained of back pain so bad that it stopped her from doing housework or climbing stairs, but HEW examiners found “the spine showed only minimal arthritic changes.” Examiners for HEW did find X-ray evidence confirming arthritis in her hand, but they found no “objective evidence to support complaints of pain in areas other than the hands.” But one sympathetic physician watching Page very closely concluded that she was no fraud, simply because of how she moved—her movements were a portrait in honest fragility. She rotated her neck slowly and carefully, with limited range; she raised her shoulders only slightly when asked to do so; and she walked unsteadily with assistance from her husband and daughter. Another expert contended that Page showed signs of “severe anxiety state with conversion hysteria.” It was a damning analysis, as “hysteria” was widely recognized as a dismissive label for the emotional, complaining woman. Taking all of this into consideration, the agency was never convinced about the severity of these pains.

When HEW called upon an orthopedic surgeon, he also offered a psychiatric diagnosis akin with the hysteria diagnosis—finding no objective X-ray results at all and concluding that Page's problems were entirely psychological. Setting the tone for HEW's rejection, he observed that “claimant ‘had a marked psychogenic overlay of her symptoms.'” The pain complaint, he insisted, had a genesis in the woman's hostile, defensive reaction to being challenged: “there was not ‘full cooperation' between the doctor and Claimant … rather ‘there was a great deal of hostility' based on her belief that she was being deprived of disability compensation.”
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Concerned about the absence of clear objective evidence and bothered by the woman's attitude, HEW rejected Page's request. When the HEW Appeals Council followed suit, Page's next delicate step (accompanied by her lawyer and family) was into the federal courts.

In court, her case came before Judge John R. Brown, a Republican who had been appointed to the federal circuit by Eisenhower eight years earlier. Given his political background, Brown might seem an unlikely person to originate a sweeping liberal interpretation of Page's condition as true pain. But Republican commitments were different in Eisenhower's time than today, with moderation verging on liberalism a powerful force in the party; in any case, the politics of pain did not align so neatly with party ideology. Like Eisenhower, Brown took a moderate view informed less by right-wing ideology than by a broad philosophy on government, morality, and social policy regarding the nation's most vulnerable citizens. A former clerk later recalled, “The one statement I remember most was his repeated insistence that we are our brothers' keepers, a stereotypically Democratic notion.” But as a lifelong Republican, the judge “would always add that our brothers and sisters had no right to demand to be kept.”
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Brown had carried this outlook on moderate intervention into his rulings on African American voting rights in the South, siding with blacks' complaints against state-imposed voting restrictions. The parallels between the
Page
case and voting rights lawsuits were clear—both hinged on whether the courts would condone or condemn government barriers to full citizenship. In a time when, as Attorney General Robert Kennedy insisted in 1963, “those of us who are white can only dimly guess at what the pain of racial discrimination must be,” one question before the courts
was how government should legally remedy such professed pains. Brown's
Page
ruling called for an interpretive leap. No one could truly know how much pain Mrs. Page was in. Her case called on those who would judge to weigh objective evidence, to consider the science, to assess the cost, but also to “climb in [her] skin and walk around it in,” as novelist Harper Lee had written a year earlier.
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Across the political spectrum, this was the political and judicial challenge—building a liberal, compassionate society based on intersubjective understanding.

The question was not only whether Judge Brown would see the world from Page's viewpoint but whether he would command HEW to sympathize with her pain. Ruling on Philip Kerner's behalf in 1960, New York circuit judges earlier had insisted that HEW could not dismiss the pleas of the aging diabetic veteran lightly and without amassing evidence of his nondisability. Whether Brown was swayed by these earlier arguments, by his “brother's keepers” convictions, or by the display of evidence in the case record, he pushed the Kerner decision further. He took Page's side; he acknowledged that there was a yawning gap between the lives of judges like him and those living with hardship, infirmity, and want. His ruling affirmed dramatically that the lack of “objective clinical and laboratory findings” was no grounds for dismissal: “if pain is real to the patient …, the disability entitles the person to the statutory benefits even though the cause of such pain cannot be demonstrated by ‘objective clinical and laboratory findings.'”
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Charges of excessive liberalism and judicial activism would follow, but Brown remained content that he had done the right thing for Page and for society.

Brown's 1963
Page v. Celebrezze
ruling that Page's subjective complaints were real and deserving of compensation upended revered legal opinion on such matters dating to the 1930s. Decades earlier, the eloquent and influential Judge Learned Hand had made a hard distinction between pain and
disabling
pain. The two were not the same, he insisted, nor should all cries of pain be nursed and given solace. In his 1937 opinion in
Theberge v. United States
(written in the midst of a long, deep economic depression), Hand insisted that “a man may have to endure discomfort or pain and not be totally disabled; much of the best work of life goes on under such disabilities.”
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Notably, the ruling read like a tough-minded formula for coping in hard economic times. Hand's opinion had become much quoted, with even the HEW Appeals Council citing this long-standing
view in its rejection of Page. Not only did pain have a positive value, but HEW also raised the objectivity question—insisting that Page's complaints were “inconsistent with or out of proportion to the objective clinical and laboratory findings.” HEW's argument drew heavily on Hand's austere sense of pain as omnipresent, necessary, and even conducive to one's best labor. More than twenty years after Hand's ruling, grim endurance remained a cardinal virtue.

Judge Brown rejected this old view of hardship as the kind of theory that befit a harsher more rigid bygone era. Page's pain was born of another moment, and it was “true pain” even if it did not have the requisite objective features that Hand wished to see. Furthermore, Brown rejected outright the notion that “the best work of life” could, and should, be done amid distress, discomfort, or necessary hardship. Over the next years, just as other judges had once followed Hand's lead, jurists of this new era would follow Brown.

With his momentous statement, “if pain is real to the patient,” the Brown ruling established a liberal pain standard in American litigation and jurisprudence.
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This was a far-reaching, idealistic claim: that felt pain could become an entitlement and that the experience itself triggered compassion and financial support. A generous theory of felt pain as true pain emerged—in law, in medicine, in government, and in society. This theory grew more capacious through the decade, resonating with the era's fitful ideals of expanding equality and citizenship. Brown insisted, “This notion that pain must be endured, that pain, no matter how severe or overpowering, is not disabling unless it will ‘substantially aggravate' a condition is ‘contrary to the standard announced in' cases from this and other Circuits”
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As his brother's keeper, the Republican judge pushed the logic of liberal relief toward a new precedent.

Over the next decades, legal scholars later observed, “a significant number of federal [disability] cases were decided in which the alleged disability was wholly or substantially related to pain.” Rather than dismissing such pains out of hand, the court now threw these complex conditions back to HEW—with the command that subjective pain must be taken seriously. As the U.S. solicitor general assessed matters in 1965, “HEW tries literally hundreds of these disability cases. It would seem that more and more of them are being taken to court and that in a goodly percentage of the litigated cases (particularly in depressed areas of the country) the
Secretary's decisions are being reversed.” In the wake of such rulings came a sweeping liberal expansion; claims grew and the disability program swelled to thousands, tens of thousands, and then hundreds of thousands. In time, these cases occupied the attention of judges throughout the federal circuit. As well, a growing cadre of medical experts, lawyers, government officials, and other experts in the sciences would be drawn into the judging of pain and disability in the legal arena. One might think of this development as the slow expansion of a bureaucracy of relief spanning the 1960s and 1970s.
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Was pain “real” if it was not detectable by X-ray analysis? Was psychosomatic or psychoneurotic pain eligible for compensation? If so, what levels of relief should be granted to those infirmities and for how long? Evaluating pain in the wake of the
Page
decision demanded a new breed of pain experts, or perhaps even a team of them. Coming out of medicine, law, sociology, and other fields, they were thrust onto a large stage, where their judgments on pain causation, their demonstrative evidence, and their theories of pain psychology and personality would be used to navigate between the era's liberalizing tendencies and simmering conservative discontent. As the U.S. solicitor general saw it in one 1965 HEW dispute, all cases of disability posed challenges: “In all but the extreme cases it is very difficult to determine whether a man is truly disabled. Many subjective and intangible factors, as well as so-called objective medical evidence, play a role in the appraisal of a man's condition. Almost invariably there is considerable conflict in the expert testimony.”
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Determining true pain from false pain became a recurring flash point of political controversy—every case raised questions of perception and personality, and beneath the accumulating claims for relief lay troubling issues of welfare, citizenship, the size and scope of government, and the very future of the society.

In the early years of the 1960s, many patients and their attorneys were gaining the upper hand in disability compensation cases, even as pain remained a contentious issue in medical-legal debate. The famous trial lawyer Melvin Belli effectively used what he called “demonstrative
evidence” to win over juries in cases involving pain and suffering; other lawyers spoke of “projecting trauma.” The new trend in court was using charts, graphs, X-rays, and other images to win over juries in disability and liability cases. Doctors despised the tactics; Belli understood why. Physicians found their authority challenged in these courtroom battles; they regarded men like Belli as wolves “circling the wounded deer ready to leap for the jugular.” But Belli had discovered a winning strategy—producing victories in suits for injury and securing disability claims for plaintiffs in an era when the law had opened the door to public relief. As governments in the United States and the United Kingdom extended disability benefits to their citizens, Belli wrote, expertise in debating disability was needed from personal and industrial liability cases to government compensation cases: “the doctor and lawyer can for himself see which way the socialistic wind is blowing, can read the cases, and can place his own bet whether, in the next ten years, his fees will be coming from private but rich Mrs. Throckmorton or even richer but public Uncle Sam.”
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Journalists, social scientists, and others were also busy spinning theories of pain that intersected with the legal debate and that shaped shifting sensitivities about a diversifying cultural and ethnic landscape. The media seemed fascinated by pain's many mysteries beyond the soldiers who had occupied center stage in earlier years—questions like whether women felt pain the same way that men did, whether different ethnic groups (Italians, Irish) tolerated pain differently from one another, and why some people complained more than others. One 1962
Popular Science
article sped readers through new findings on the hardy, stoic Eskimo (citizens in the newest, fiftieth state), noting grandiosely that “decidedly, Eskimos … have been known to hack off a gangrenous foot to save a leg—and do it without wincing—but it's not uncommon for a gray-flannelled Madison Avenue executive to shudder at the first sound of a dentist's drill digging into a heavily novocained tooth.” Such overstated gaps in pain tolerance confirmed a worry of the era—that civilization had bred in men a kind of weakness unknown to the primitives. In India, paradoxically, the fact that “Indian fakirs snuggle down on beds of nails—seemingly in comfort [could be] explained on the basis of hysteria—a kind of emotional frenzy that may act as an anesthetic.” Here was yet another moral about pain: that hysteria did not only feed a culture of complaint but could also in the Near East build a wall against pain. Many such anecdotes found their
way from research into popular reporting, underscoring that the American fascination with pain was not only narrowly judicial. Not only judges and lawyers but also social scientists and the broader media worried about the toughness of some citizens and the oversensitivity of others—and the implications of pain endurance for the nation.
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