Burch v. Barnhart

• Decision Date: 20 January 2005
• Docket Number: No. 03-15986.,03-15986.
• Citation: 400 F.3d 676
• Parties: Deborah L. BURCH, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner Of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.3d 676

Deborah L. BURCH, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner Of Social Security, Defendant-Appellee.

No. 03-15986.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2004.

Filed January 20, 2005.

Steven G. Rosales, Santa Fe Springs, CA, for the appellant.

Elizabeth Noteware, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California; Lawrence J. O'Neill, Magistrate, Presiding. D.C. No. CV-02-05427-LJO.

Before O'SCANNLAIN, ROBERT E. COWEN,^* and BEA, Circuit Judges.

COWEN, Circuit Judge.

Deborah L. Burch appeals the district court's order affirming the decision of the Administrative Law Judge ("ALJ"), which denied her applications for supplemental security income and disability insurance benefits under Titles II and XVI of the Social Security Act ("Act"). Burch alleged disability based on breast cancer, asthma, back pain, weakness, and depression. She contends that the ALJ committed the following errors which were overlooked by the district court: (1) rejecting her pain testimony without articulating a legally sufficient reason, and (2) failing to adequately consider her obesity throughout the sequential disability analysis. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

Procedural Background

The Social Security Administration denied Burch's applications for social security and disability insurance benefits initially and upon reconsideration. After conducting a hearing on the merits, the ALJ concluded that Burch was not disabled under the Act and denied her applications for benefits. The Appeals Council denied review. Burch then filed an action for judicial review in the United States District Court for the Eastern District of California. The district court affirmed the decision denying benefits and entered judgment for the Commissioner of Social Security (the "Commissioner"), and this appeal followed.

Factual Background

Burch was employed as a nursing assistant from August 1994 until February 1999, when she stopped working allegedly because of back pain and stress. On March 23, 1999, Dr. Kouroush Laaly stated that Burch was disabled as a result of her breast cancer. The medical evidence reflects that Burch underwent two mastectomies between May 1997 and May 1999 and had reconstructive surgery in 1999.

The medical record also documents Burch's lower back pain beginning in August 1997 with increasing degrees of severity. Burch initially described the pain as intermittent, and was prescribed Darvon, Motrin, and Tylenol. Approximately one year later, she was diagnosed with a cervical sprain. An MRI showed early degenerative disc disease but no evidence of disc bulging or protrusion at any level. In December 1999, Burch reported that she had constant back pain, which increases with bending and decreases with walking. A radiological report was issued at this time which showed mild degenerative disc disease and mild dextrascoliosis of the lumbar spine.

Burch's pulmonary disorders are also supported by the medical record. A pulmonary function test performed in April 1999 revealed mild to moderate obstructive broncho pulmonary disease, mild restricted lung disease and mild diffusion abnormality. Due to these results, a physician recommended that Burch stop smoking.

The medical record also includes notations of Burch's obesity. In August 1997 her physician commented that she was "slightly obese" (E.R. at 254) and indicated one year later that she had gained 25 pounds in the past few months. In April 1999, a physician recommended that Burch join a medically supervised weight loss program.

At the hearing before the ALJ, Burch testified that she was 5'4" and weighed 215 pounds. She explained that her "normal" weight was 185 pounds but she was gaining weight because of stress. (E.R. at 26-27.) Burch further stated that standing for long periods causes pain from her neck down and numbness on her right side. She also explained that because her medication (Tylenol with codeine, Prozac and Elavils) is alone ineffective, she takes the pills with liquor to numb the pain and pass out. Burch stated that her physicians had not recommended surgery, physical therapy, chiropractic treatment, or home exercise for her back pain.

Burch further testified that she can stand for about 10-15 minutes, sit for 20-30 minutes and walk for 15-20 minutes. In terms of her daily activities, Burch explained that she watches television and does light housework. Approximately twice a week she sees her boyfriend with whom she socializes or watches television. Sometimes she takes care of the bills, shops and travels by bus. Burch also stated that on average twice a week she could not get dressed and sometimes limited her housework because of pain and fatigue. She lives with her seventeen year old nephew.

We review de novo the district court's order affirming an ALJ's denial of benefits. See Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir.1999). A decision to deny benefits will only be disturbed if it is not supported by "substantial evidence or it is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989) (internal quotation marks omitted). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir.1995). A decision of the ALJ will not be reversed for errors that are harmless. See Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir.1991).

To be eligible for social security or disability benefits, Burch must demonstrate that she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Because Burch was only insured for disability benefits through September 30, 1999, she must establish a disability on or prior to that date.

Disability claims are evaluated using a five-step sequential analysis. 20 C.F.R. § 404.1520. In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, App. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the residual functional capacity ("RFC") to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled.

The claimant carries the initial burden of proving a disability in steps one through four of the analysis. See Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989). However, if a claimant establishes an inability to continue her past work, the burden shifts to the Commissioner in step five to show that the claimant can perform other substantial gainful work. See id.

Here, the ALJ determined that Burch satisfied the criteria for steps one, two and four — she has not engaged in substantial gainful activity, she suffers from a "severe" impairment (though not a listed impairment) and is not capable of performing her past work. However, the ALJ determined that Burch has the RFC to perform a significant range of light work, including cashier, agricultural sorter and outside deliverer. See 20 C.F.R. § 416.967 (defining "light work").

I. Credibility Determination

Burch contends that the ALJ's credibility findings were not supported by substantial evidence in the record. She further argues that the reasons provided by the ALJ for discrediting her complaints were inadequate. While correctly stating the law, Burch's analysis is flawed.

In evaluating the credibility of pain testimony after a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain. See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.1991). The rationale for this restriction is that pain testimony may establish greater limitations than can medical evidence alone. See SSR 96-7p (1996). In determining credibility, an ALJ may engage in ordinary techniques of credibility evaluation, such as considering claimant's reputation for truthfulness and inconsistencies in claimant's testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.2001). Additionally, Social Security Ruling 88-13 lists a number of factors the ALJ may consider:

1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain; 2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions); 3. Type, dosage, effectiveness, and adverse side-effects of any pain medication; 4. Treatment, other than medication, for relief of pain; 5. Functional restrictions; and 6. The claimant's daily activities.

Bunnell, 947 F.2d at 346 (quoting SSR 88-13 (1988)) (superceded by SSR 95-5p (1995)); see also Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.1996).

Unless there is affirmative evidence showing that the claimant is malingering, the ALJ's reasons for rejecting pain testimony...