FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ANTHONY JORDAN,                                    No. 19-70521
                                 Petitioner,
                                                       BRB No.
                      v.                               18-0476

 SSA TERMINALS, LLC; HOMEPORT
 INSURANCE CO.; DIRECTOR, OFFICE                      OPINION
 OF WORKERS’ COMPENSATION
 PROGRAMS,
                      Respondents.

              On Petition for Review of an Order
                of the Benefits Review Board

             Argued and Submitted May 15, 2020
                  San Francisco, California

                      Filed August 28, 2020

    Before: Ryan D. Nelson and Daniel A. Bress, Circuit
        Judges, and Frederic Block, District Judge. *

                     Opinion by Judge Block




     *
       The Honorable Frederic Block, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
2                  JORDAN V. SSA TERMINALS

                          SUMMARY **


    Longshore and Harbor Workers’ Compensation Act

    The panel granted a claimant’s petition for review of the
Benefits Review Board’s denial of his claim for disability
benefits under the Longshore and Harbor Workers’
Compensation Act; and remanded with instructions to the
administrative law judge to apply the proper legal standard
in assessing claimant’s allegations of disabling pain.

    The panel held, as a matter of first impression, that
credible complaints of severe, persistent, and prolonged pain
can establish a prima facie case of disability, even if the
claimant can literally perform his or her past work. The
panel held further that a claimant need not experience
excruciating pain to be considered disabled.

    The panel held that the ALJ’s opinion as a whole
suggested that the ALJ believed claimant had to establish
that it was literally impossible for him to do his past work,
and this was error.

    The panel left it to the ALJ on remand to determine,
based on consideration of all the facts and circumstances of
the case, whether claimant’s complaints of pain were (1)
credible, and (2) if so, whether the level of pain was
sufficiently severe, persistent, and prolonged to significantly
interfere with the claimant’s ability to do his or her past



    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                JORDAN V. SSA TERMINALS                   3

work. The panel held that the pain must relate to an injury
that arose out of and in the course of employment.


                       COUNSEL

Michael Villeggiante Jr. (argued) and Philip R. Weltin,
Weltin Streb & Weltin LLP, Oakland, California, for
Petitioner.

Alan J. Chang (argued), Bruyneel Law Firm LLP, San
Francisco, California, for Respondents.


                         OPINION

BLOCK, District Judge:

    Anthony Jordan petitions for review of the denial of his
claim for disability benefits under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA” or “the Act”),
33 U.S.C. §§ 901–50. Because the Administrative Law
Judge (“ALJ”) applied an improper legal standard in
assessing Jordan’s disability, we grant the petition and
remand. We write principally to set forth the standards for
evaluating pain under the Act.

                             I

    Jordan worked for SSA Terminals, LLC (“SSA”), as a
longshoreman. Approximately 85% of the time, he was
assigned to drive a heavy truck (called a “tractor”) to move
cargo containers around the terminal. Jordan also owned and
operated a small landscaping business.
4               JORDAN V. SSA TERMINALS

    On September 17, 2014, the tractor Jordan was driving
was lifted and dropped by a crane. He suffered extensive
damage to his lower back, including herniated discs, stenosis
and nerve impingement. He was initially treated with
medication and physical therapy, but continued to complain
of back pain and spasms, as well as pain and numbness in
his legs. These symptoms reduced his mobility and made
him prone to falling.

    Jordan saw Dr. James Reynolds, a spine surgeon, on
three occasions beginning in November 2015. Dr. Reynolds
recommended spinal fusion surgery, which was successfully
performed on March 28, 2018.

    Several years before the surgery, Jordan filed a claim for
benefits under the LHWCA with SSA and its insurer,
Homeport Insurance Company (“Homeport”). SSA and
Homeport agreed that Jordan was totally disabled
immediately following the accident and again as he
recovered from surgery.

    At some point during the claim process, Homeport
ordered surveillance of Jordan. The surveillance videos,
recorded in January 2015 and between February and June
2016, showed Jordan lifting and carrying various objects;
engaging in physical activities such as bending, tossing a
baseball, and doing push-ups; and attending sporting events
where he appeared to sit and stand for long periods without
difficulty.

    Presumably based on the videos, SSA and Homeport
took the position that Jordan was able to perform his usual
work for a period of time between his accident and his
surgery. Accordingly, the claim was assigned to an
administrative law judge to determine whether Jordan was
disabled between April 14, 2016, and March 27, 2018.
                JORDAN V. SSA TERMINALS                      5

A. Testimony of Claimant and Treating Physician

     The ALJ held an evidentiary hearing at which Jordan and
Dr. Reynolds testified. Jordan testified, “There’s nothing I
can’t do, but it all either is painful, elevates the pain, or I
can’t do it for the amount of time that would be considered
a job.” He further testified that his landscaping business
required “[p]ushing a lawnmower, walking around with a
blower, watering plants, some grooming, a lot of pointing,
telling people what to do,” as well as lifting “[m]aybe
35 pounds.” Jordan continued to do landscaping work after
his injury, but testified that it was “not at the capacity that
[he] was.” Instead of doing “every aspect of the job” as he
did before, he was “more in the supervisor-type role” after
his injury. He still did some physical tasks, but only
“because [he had] no choice.”

    Dr. Reynolds corroborated Jordan’s complaints of pain,
testifying that MRIs revealed “modic changes,” a condition
“generally associated with a lot of back pain.” Dr. Reynolds
testified in particular that “bouncing around in a truck”
would be “very painful” and “assume[d] it would accelerate
the already significant degeneration that’s present in the
[lower back].” In sum, Dr. Reynolds opined that Jordan was
totally disabled from work as a longshoreman, principally
because he could not work “an eight-hour day in a regular
fashion” and would have to “take breaks and do things to
decrease the pressure on his back.” He acknowledged that
Jordan continued to work “about five hours a day” at his
landscaping business, but “didn’t discourage him from doing
that” because he could “take breaks or lie down or lean
against a wall.”

    Dr. Reynolds did not view the surveillance videos, but
saw references to them in the reports of one of the non-
treating physicians discussed below.
6               JORDAN V. SSA TERMINALS

B. Evidence from Non-Treating Physicians

    The ALJ also received evidence in the form of the reports
and depositions of three non-treating physicians retained to
perform independent medical examinations: Dr. Yi Chiang,
an osteopath; Dr. Charles Skomer, a neurologist; and
Dr. Brian Su, an orthopedist.

    Dr. Chiang saw Jordan on four occasions. At one point,
Jordan asked Dr. Chiang to become his treating physician,
but she declined. After the first three examinations,
Dr. Chiang opined that Jordan was unable to work as a
longshoreman; after the fourth, on February 26, 2016, she
opined that he could return to work provided he did not need
to bend at the waist more than 50% of the time, lift or carry
greater than 20 pounds, or walk more than one hour at a time;
she specifically opined that Jordan was “[a]ble to drive
autos, cars, tractors.” After viewing the surveillance videos,
Dr. Chiang testified at a deposition that she would have said
that Jordan could work without restrictions on February 26,
2016, because the videos showed him “surpassing those
[restrictions] effortlessly.”

    Dr. Skomer examined Jordan on two occasions. After an
examination on June 10, 2015, he opined that Jordan was
totally temporarily disabled. After an examination on
August 12, 2015, he opined that Jordan could perform
“semi-sedentary” work for up to four hours a day, with
“breaks for stretching” every 30 minutes. As with
Dr. Chiang, Dr. Skomer changed his opinion after viewing
the surveillance videos. In an October 2016 report, he stated
that Jordan could perform his “normal employment full time,
without restrictions,” and that his prior opinions were “not
valid or accurate” because it was not “reasonable” to
conclude that Jordan “was experiencing lumbar and lower
                JORDAN V. SSA TERMINALS                     7

extremity pain while able to perform the activities observed
on the video tapes.”

    Dr. Su examined Jordan on October 6, 2017, and
reviewed the reports of Drs. Chiang and Skomer, as well as
the surveillance videos. He opined that the surveillance
videos were inconsistent with Jordan’s complaints of pain,
and that he could “return to his job as a longshoreman.”
Since Dr. Su viewed the surveillance videos prior to
preparing his report, there was no need for him to revise his
opinions.

C. Agency Decisions

    The ALJ rendered his decision on May 29, 2018. He
began by describing “the most difficult issue in this case” as
“the difference between ‘can’ and ‘cannot’”:

       Mr. Jackson [sic] argues it may be literally
       true he “can” endure some level of physical
       exertion, but only at such a cost in
       extraordinary effort and suffering the court
       cannot fairly require it of him under the
       circumstances of this case. [SSA], by
       contrast, argues the court cannot rationally
       conclude Mr. Jordan “cannot” exert himself
       physically when he in fact does. Thus the
       court finds itself in the Twilight Zone
       separating difficulty from impossibility—the
       difference between “can” and “cannot.”

    The ALJ then summarized the evidence set forth above.
He described Jordan’s testimony that he could do anything
he wanted, “but only with pain, and only for shorter periods
than before the injury,” as “unhelpful.” He apparently did
not accept SSA and Homeport’s assertion that Jordan was
8               JORDAN V. SSA TERMINALS

not credible, instead describing him as “focusing on the
wrong question.” In the ALJ’s mind, the relevant question
was “whether [Jordan’s] remaining abilities would allow
him to return to work.” “On this point,” the ALJ thought,
“Mr. Jordan’s testimony is, at best, ambiguous.”

    Turning to Dr. Reynolds, the ALJ described him as
“well-qualified” and “credible.” He nevertheless rejected
his opinion that Jordan could not work as a longshoreman
“for one reason only: he has never seen [the] surveillance
footage.” The ALJ stated that the difference between
Jordan’s self-described limitations and the activities shown
in the videos was “striking, even to the untrained eye.”
Stressing the changed opinions of Drs. Chiang and Skomer,
he further noted that the videos’ “effect on the medical
opinions in this case is remarkable.”

    The ALJ described Jordan’s complaints of pain as “not
wildly improbable” and acknowledged that “[a] lazier
person in Mr. Jordan’s position might well have simply
stayed at home and made no effort to work after the
accident.” But the ALJ reasoned that “[i]f Mr. Jordan ‘can’
work, the Act presumes that he will, and denies him
benefits,” and that “if Mr. Jordan’s financial needs compel
him to work unwillingly, he has plenty of company in the
workforce.” Accordingly, the ALJ found that Jordan had not
carried his burden of proving that he was totally disabled
between April 14, 2016, and March 27, 2018.

    Jordan appealed to the Benefits Review Board (“BRB”),
which affirmed. It held that the ALJ (1) “rationally
determined that [Jordan’s] statements regarding his inability
to return to work are not creditable” in light of the
surveillance videos, and (2) “permissibly gave greater
weight to the opinions of the physicians who viewed the
                JORDAN V. SSA TERMINALS                    9

surveillance videos.” Jordan timely petitioned for judicial
review.

                             II

    The BRB must accept the ALJ’s findings of fact unless
they are “contrary to the law, irrational, or unsupported by
substantial evidence.” Chugach Mgmt. Servs. v. Jetnil,

, 1173 (9th Cir. 2017). We then “conduct an
independent review of the administrative record to
determine if the Board adhered to this standard.”
Stevedoring Servs. of Am. v. Price, 

, 883 (9th
Cir. 2004). The interpretation of the LHWCA, by contrast,
“is a question of law reviewed de novo and is not entitled to
any special deference.”

the employee has the initial burden
of proving that “his work related injury prevented him from
performing his former job.” Hairston v. Todd Shipyards
Corp., 

, 1196 (9th Cir. 1988). The burden then
shifts to the employer to prove “that suitable alternate work
was available in the community.”

Disability

    The central issue in this case is whether Jordan’s
complaints of pain described a covered disability. The
LHWCA defines “disability” as the “incapacity because of
injury to earn the wages which the employee was receiving
at the time of injury in the same or other employment.”
33 U.S.C. § 902(10).

    We have occasionally alluded to the effect of pain on a
claimant’s ability to do work and earn wages. The claimant
in Carrion v. SSA Marine Terminals, LLC, 

(9th Cir. 2016), for example, “had endured decades of
10              JORDAN V. SSA TERMINALS

persistent [knee] pain without any actual or expected
improvement.”

We said that “[w]ithout doubt,
he is disabled.”

Co. v.
Director, Office of Workers Compensation Programs,

(9th Cir. 1991), we upheld the ALJ’s finding
that the claimant’s post-injury wages did not reflect his
earning capacity because he was able to work after his injury
only with “pain and limitations.”

     Other circuit courts have been more explicit that pain can
be disabling. See, e.g., Bath Iron Works Corp. v. White,

, 575 (1st Cir. 1978) (“[A]n employee need not
be in pain, nor is he required, after injury, to continue in
employment which is medically contraindicated until his
condition and pain render it impossible for him to work at
all.”). Perhaps the clearest statement comes from the Fifth
Circuit: “Even if able to work, [a claimant] may be found to
be totally disabled if he is working with extraordinary effort
and in excruciating pain.” La. Ins. Guar. Ass’n v. Bunol,

, 297 (5th Cir. 2000). The BRB has itself
endorsed a virtually identical formulation: “An employee
may be found to be totally disabled despite continued
employment if he works only through extraordinary effort
and in spite of excruciating pain, or is provided a position
only through employer’s beneficence.” Ramirez v. Sea-
Land Servs., Inc., 33 BRBS 41, 

, at *5
(BRB Apr. 20, 1999); see also Haughton Elevator Co. v.
Lewis, 

, 451 (4th Cir. 1978) (Winter, J.,
concurring) (“I agree with the Board that ‘it would be unfair
to penalize [the claimant] by denying him compensation for
permanent total disability because he made an extraordinary
effort to keep working” and that a man “having a severe
physical disability as a result of an employment-related
injury should not be required to continue enduring
                 JORDAN V. SSA TERMINALS                     11

excruciating pain and subjecting himself to the possibility of
further injury . . . .”).

    SSA and Homeport do not dispute the idea that pain can
be disabling, but point out that the complaints of pain must
be credible. We agree.

    We hold, as a matter of first impression, that credible
complaints of severe, persistent, and prolonged pain can
establish a prima facie case of disability, even if the claimant
can literally perform his or her past work. See, e.g., 

.

    Our holding should not be taken to mean that any amount
of pain is per se disabling. As the Sixth Circuit observed in
Paducah Marine Ways v. Thompson, 

(6th Cir.
1996), there are some “aches and pains that are not disabling
and thus not compensable” under the LHWCA.

Even judges must endure some degree of physical
discomfort inherent in their work.

    On the other hand, a claimant need not experience
excruciating pain to be considered disabled. According to
one reputable dictionary, “excruciating” is defined as “so
intense as to cause great pain or anguish,” Webster’s Third
New International Dictionary 794 (2002), and is
synonymous with “agonizing, harrowing, racking, raging,
tormenting, torturing, torturous [and] wrenching,” Merriam-
Webster Online, https://merriam-webster.com/dictionary/
excruciating (last visited Aug. 21, 2020). Torture should not
be the benchmark for disability under the LHWCA, a statute
which “is to be liberally construed in favor of injured
employees.” Saipan Stevedore Co. v. Dir., Office of
Workers’ Comp. Programs, 

, 722 (9th Cir.
1998) (citing Voris v. Eikel, 

, 333 (1953)).
12              JORDAN V. SSA TERMINALS

    Moreover, although the Fifth Circuit and the BRB have
made reference to the term, neither has suggested that
“excruciating” is the threshold for disabling pain. Both the
circuit court and the agency simply rejected the proposition
that continued employment precluded a finding of disability
in the face of evidence that the work subjected the claimant
to such extreme pain. See 

; Ramirez,

, at *5 n.5. Indeed, the Fifth Circuit has
elsewhere acknowledged that the LHWCA does not
“require[] that a longshoreman be bed-ridden before he is
considered totally disabled.” Watson v. Gulf Stevedore
Corp., 

, 654 (5th Cir. 1968); see also John W.
McGrath Corp. v. Hughes, 

, 405 (2d Cir. 1961)
(noting that, under the LHWCA, “[a] person may be
permanently totally disabled in an economic sense and still
be ambulatory”).

    Between the poles of “any” pain (which is not sufficient),
see Paducah Marine 

, and
“excruciating” pain (which is not necessary to show), see

, lies a considerable range. There is,
in other words, a vast middle ground between occasional
discomfort and torture. Although the cases have not clearly
identified the quantum of pain that is sufficient to create a
disability under the LHWCA, the statute’s definition of
“disability” and the case law in this area support our holding
that the level of pain must be sufficiently severe, persistent,
and prolonged to significantly interfere with the claimant’s
ability to do his or her past work. See

based on testimony that the claimant
worked only with “substantial” and “constant pain”); see
also Mijangos v. Avondale Shipyards, Inc., 

,
944–45 (5th Cir. 1991) (reinstating disability award when
“there was much expert testimony indicating that [the
claimant] could physically perform certain jobs” but “[t]here
                 JORDAN V. SSA TERMINALS                     13

was also testimony indicating that [the claimant] would have
constant pain in any of these jobs”); see also Nardella v.
Campbell Mach., Inc., 

, 49 (9th Cir. 1975)
(“Even a relatively minor injury must lead to a finding of
total disability if it prevents the employee from engaging in
the only type of gainful employment for which he is
qualified.”).

    We leave it to ALJs to determine, based on consideration
of all the facts and circumstances of a particular case,
whether a claimant’s complaints of pain are (1) credible and
(2) if so, whether the level of pain described is so severe,
persistent, and prolonged that it significantly interferes with
the claimant’s ability to do his or her past work. Although
we do not attempt an across-the-board definition of disabling
pain, we offer the following guideposts.

    First, the pain must relate to an injury “arising out of and
in the course of employment.” 33 U.S.C. § 902(2); see also
Kalama Servs., Inc. v. Office of Workers’ Comp. Programs,

, 1091 (9th Cir. 2004). Pain unrelated to such
an injury will not suffice.

    In addition, the pain must be sufficiently severe,
persistent, and prolonged to adversely impact the claimant’s
ability to do his or her job in some significant way. This
certainly includes impossibility; an injury might make an
activity so painful that the employee literally cannot do it,
“render[ing] it impossible for him to work at all.” See 

. It would also cover a situation in which the
employee can perform a task only by enduring extreme or
“excruciating” pain. 

. But it might
also impact the employee’s ability to perform the activity
over a full workday. See Eller & Co. v. Golden, 

,
72 (5th Cir. 1980) (upholding a disability benefits award
when, among other things, the claimant credibly testified
14              JORDAN V. SSA TERMINALS

that he could “not continue to work beyond four hours due
to pain in his lower back and the ‘giving way’ of his left knee
which caused him to fall when he attempted to lift cargo”).
Or it might simply cause the severe, persistent, and
prolonged pain that would make a reasonable employee stop
doing the activity. See 

(upholding
disability benefits based on “substantial” and “constant
pain”); 

–45 (5th Cir. 1991)
(reinstating disability award based on “constant pain”). In
other words, whatever the level of pain, the employee need
not make an “extraordinary effort” to overcome it and should
not be penalized if he or she does so. 

.

     Relatedly, and although somewhat distinct from the
issue of the required quantum of pain, an employee need not
perform work that, according to the medical evidence, will
exacerbate his or her injury to a degree that significantly
impedes the claimant’s ability to perform his or her past
work. As the First Circuit explained in Bath Iron Works, a
claimant is not “required, after injury, to continue in
employment which is medically contraindicated until his
condition and pain render it impossible for him to work at

; see also Container 

(upholding an award of disability benefits
based in part on a treating physician’s view that continuing
to work would “lead to worsening symptoms and worsening
disability” for the claimant) (quotations omitted); Haughton
Elevator 

(Winter, J., concurring)
(agreeing that, under the LHWCA, a claimant “should not be
required to continue enduring excruciating pain and
subjecting himself to the possibility of further injury”); Care
v. Wa. Metro. Area Transit Auth., 21 BRBS 248, 251 (1988)
(“A doctor’s opinion that [a claimant’s] return to his usual
work would aggravate his condition may support a finding
of total disability.”); Lobue v. Army & Air Force Exch. Serv.,
                 JORDAN V. SSA TERMINALS                        15

15 BRBS 407, 408–09 (1983) (affirming an ALJ’s finding
that the claimant was disabled based on a physician’s
statement that continued work would “aggravate” the
claimant’s spondylolisthesis); cf. Haw. Stevedores, Inc. v.
Ogawa, 

, 653 (9th Cir. 2010) (affirming ALJ’s
consideration of work restrictions that would allow claimant
to “avert more pronounced cognitive difficulties”).

B. Application

    The ALJ in this case framed his analysis as an inquiry
into the difference between “difficulty” and “impossibility,”
or between “can” and “cannot.” As we explained above, our
answer to that inquiry is that disability does not mean that it
is completely impossible for the claimant to do his or her
past work. Our review of the ALJ’s decision indicates that
he applied an improperly high standard to Jordan’s claim.

    First, in the ALJ’s view, SSA and Homeport argued that
“the court cannot rationally conclude Mr. Jordan ‘cannot’
exert himself physically when in fact he does.” That he
found in favor of SSA and Homeport implies, absent any
indication to the contrary, that he adopted the impossibility
standard he said they advocated.

     Second, the ALJ described Jordan’s testimony about his
pain as “unhelpful,” “focused on the wrong question,” and
“at best, ambiguous.” To the contrary, Jordan relevantly and
unambiguously testified that he could do anything he wanted
to, but “it all either is painful, elevates the pain, or I can’t do
it for the amount of time that would be considered a job.” If
the ALJ did not believe that testimony, he could have said
so. Instead, he described Jordan as “human” and “hardly
unusual.” Such descriptions shed no light on the ALJ’s view
of Jordan’s credibility. Instead, and notwithstanding the
ALJ’s apparent reliance on the opinions of the different
16                 JORDAN V. SSA TERMINALS

physicians and the surveillance video footage of Jordan, the
ALJ’s opinion as a whole suggests that the ALJ believed
Jordan had to establish that it was literally impossible for
him to do his past work. That was error. 1

    Therefore, we remand to the BRB with instructions to
remand to the ALJ. On remand, the ALJ must first
determine whether Jordan’s complaints of pain were
credible. If so, then the ALJ must decide whether the pain
described significantly affected Jordan’s ability to do his
past work in the manner we have described in this opinion.
If the ALJ finds Jordan’s complaints of pain not credible,
then they need not be taken into account.

C. Other Issues

    Jordan makes two additional claims of error. First, he
argues that the ALJ’s decision to credit the opinions of the
non-treating physicians over those of Dr. Reynolds was
irrational. 2 Second, he argues that the surveillance videos
alone are not substantial evidence of his ability to work.


     1
        The BRB described the ALJ’s decision as a “rational[]
determin[ation]” that Jordan’s testimony about his limitations were “not
creditable.” Unlike many final administrative decisionmakers, the BRB
is not free to reach an independent conclusion; its review of the ALJ’s
decision is limited by the “substantial evidence” standard. See 

. We therefore do not defer to the BRB’s description of
the ALJ’s decision.
     2
      As in Social Security cases, the opinions of treating physicians in
LHWCA cases are “entitled to special weight.” Amos v. Dir., Office of
Workers Comp. Programs, 

, 1054 (9th Cir. 1998).
However, that deference is given because a treating physician “has a
greater opportunity to know and observe the patient as an individual.”

Bowen, 

, 751 (9th Cir. 1989)).
                  JORDAN V. SSA TERMINALS                         17

    Both those issues are potentially relevant to Jordan’s
credibility regarding his pain. Jordan’s self-described pain
was corroborated by Dr. Reynolds but called into question
by the non-treating physicians. The surveillance videos
show Jordan engaged in activities arguably inconsistent with
his description of his limitations.

    In addition to whatever independent evidentiary weight
they might have, the surveillance videos provided a basis
from which the medical experts could draw inferences
regarding Jordan’s ability to work full-time as a
longshoreman. The ALJ can give those inferences the
weight he thinks they deserve. Indeed, we expect that the
ALJ will consider all the evidence—Jordan’s testimony, the
opinions of treating and non-treating physicians, and the
surveillance videos—in deciding whether Jordan’s
complaints of pain are credible, and if so, whether that pain
significantly impacted his ability to do his past work.

                                III

    Jordan’s petition for review is GRANTED. The matter
is REMANDED to the BRB with instructions to remand to
the ALJ for further proceedings consistent with this opinion.




Here, Dr. Reynolds saw Jordan on only three occasions, while Dr.
Chiang saw him four times. Jordan does not argue that Dr. Reynolds’s
status as a treating physician entitled his opinion to any particular
deference.