Burch v. Barnhart

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DEBORAH L. BURCH, 
Plaintiff-Appellant, No. 03-15986
v.
 D.C. No.
CV-02-05427-LJO
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Magistrate, Presiding

Argued and Submitted
December 9, 2004—San Francisco, California

Filed January 20, 2005

Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Cowen

*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.

2867
2870 BURCH v. BARNHART

COUNSEL

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

Elizabeth Noteware, San Francisco, California, for the appel-
lee.

OPINION

COWEN, Circuit Judge:

Deborah L. Burch appeals the district court’s order affirm-
ing 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 disabil-
ity based on breast cancer, asthma, back pain, weakness, and
depression. She contends that the ALJ committed the follow-
ing errors which were overlooked by the district court: (1)
rejecting her pain testimony without articulating a legally suf-
ficient reason, and (2) failing to adequately consider her obe-
sity 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 applica-
tions for social security and disability insurance benefits ini-
 BURCH v. BARNHART 2871
tially 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 Com-
missioner 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 alleg-
edly 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 radio-
logical report was issued at this time which showed mild
degenerative disc disease and mild dextrascoliosis of the lum-
bar 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 pulmo-
nary disease, mild restricted lung disease and mild diffusion
2872 BURCH v. BARNHART
abnormality. Due to these results, a physician recommended
that Burch stop smoking.

The medical record also includes notations of Burch’s obe-
sity. 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 “nor-
mal” 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 treat-
ment, 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,
 BURCH v. BARNHART 2873
750 (9th Cir. 1989) (internal quotation marks omitted). Sub-
stantial evidence means “such relevant evidence as a reason-
able mind might accept as adequate to support a conclusion.”
Id. (internal quotation marks omitted). Where evidence is sus-
ceptible to more than one rational interpretation, it is the
ALJ’s conclusion that must be upheld. See Andrews v. Sha-
lala, 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).

[1] 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 deter-
minable 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.

[2] Disability claims are evaluated using a five-step sequen-
tial analysis. 20 C.F.R. § 404.1520. In step one, the ALJ
determines whether a claimant is currently engaged in sub-
stantial 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 impair-
ment 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 dis-
abled. If not, the claimant is disabled.
2874 BURCH v. BARNHART
The claimant carries the initial burden of proving a disabil-
ity 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 substan-
tial gainful activity, she suffers from a “severe” impairment
(though not a listed impairment) and is not capable of per-
forming 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 deliv-
erer. 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.

[3] In evaluating the credibility of pain testimony after a
claimant produces objective medical evidence of an underly-
ing 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. Sulli-
van, 947 F.2d 341, 345 (9th Cir. 1991). The rationale for this
restriction is that pain testimony may establish greater limita-
tions 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
 BURCH v. BARNHART 2875
1144, 1148 (9th Cir. 2001). Additionally, Social Security Rul-
ing 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, effec-
tiveness, and adverse side-effects of any pain medi-
cation; 4. Treatment, other than medication, for relief
of pain; 5. Functional restrictions; and 6. The claim-
ant’s daily activities.

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

[4] Unless there is affirmative evidence showing that the
claimant is malingering, the ALJ’s reasons for rejecting pain
testimony must be clear and convincing. See Lester v. Chater,
81 F.3d 821, 834 (9th Cir. 1995). The ALJ must specify what
testimony is not credible and identify the evidence that under-
mines the claimant’s complaints—“[g]eneral findings are
insufficient.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998) (internal quotation marks omitted).

[5] In this case, the ALJ articulated adequate reasons for
partially rejecting Burch’s pain testimony. Contrary to
Burch’s argument, the ALJ did not solely rely on the minimal
objective evidence and Burch’s daily activities in discrediting
her testimony. Indeed, these factors were among those he
relied on, however, the ALJ made additional specific findings
to support his credibility determination.

[6] In considering Burch’s testimony regarding her daily
living, the ALJ explained that her daily activities “suggest that
she is quite functional. She is able to care for her own per-
sonal needs, cook, clean and shop. She interacts with her
nephew and her boyfriend. She is able to manage her own
2876 BURCH v. BARNHART
finances and those of her nephew.” (Id. at 4.) Although the
evidence of Burch’s daily activities may also admit of an
interpretation more favorable to Burch, the ALJ’s interpreta-
tion was rational, and “[w]e must uphold the ALJ’s decision
where the evidence is susceptible to more than one rational
interpretation.” Magallanes, 881 F.2d at 750.

The ALJ was permitted to consider daily living activities in
his credibility analysis. As this Court previously has
explained, if a claimant engages in numerous daily activities
involving skills that could be transferred to the workplace, the
ALJ may discredit the claimant’s allegations upon making
specific findings relating to those activities. See Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Morgan
v. Apfel, 169 F.3d 595, 600 (9th Cir. 1999) (claimant’s ability
to fix meals, do laundry, work in the yard, and occasionally
care for his friend’s child was evidence of claimant’s ability
to work).

The ALJ also considered the objective medical findings in
discounting Burch’s testimony: “[Burch] alleged that she has
had severe low back pain since her mastectomy in 1997.
However, the MRI and x-rays show only mild degenerative
disc disease at L5-S1, and mild dextroscoliosis. There was no
apparent disc herniation or nerve root impingement.” (Deci-
sion, Nov. 16, 2000, at 4.) Although lack of medical evidence
cannot form the sole basis for discounting pain testimony, it
is a factor that the ALJ can consider in his credibility analysis.

[7] Further, the ALJ partially discredited Burch’s back pain
testimony for lack of consistent treatment: “[Burch] had not
had any treatment for her back for about three or four
months.” (Id.) Indeed, at no time during this “three or four
month[ ]” period (nor, for that matter, at any other time) had
surgery for Burch’s back been suggested, had Burch had
physical therapy for her back, had she been referred to or had
she visited a chiropractor, nor had she been told to do even
home exercises for her back. (Id.) That Burch’s pain was “not
 BURCH v. BARNHART 2877
severe enough to motivate [her] to seek [these forms of] treat-
ment,” Fair, 885 F.2d at 604, even if she sought some treat-
ment, is powerful evidence regarding the extent to which she
was in pain. The ALJ also partially discredited Burch’s back
pain testimony because “[t]he evidence regarding the nature,
onset, location, frequency, intensity, and radiation of her
alleged back pain is somewhat vague and non-specific. There
is little evidence of precipitating, aggravating or mitigating
factors. . . . Her obesity likely contributes to her back discom-
fort.” (Id.)

Similarly, the ALJ partially discredited Burch’s testimony
of depression and fatigue because she did not seek any treat-
ment or evaluation:

[Burch] admits she is not being treated for [depres-
sion] . . . . At times, she has been given psychotropic
medication, but she does not carry a diagnosis of
depression and she has not received care from a
mental health practitioner. . . . There is also no evi-
dence of impairment in her ability to maintain con-
centration, persistence or pace. Further, there are no
documented episodes of decompensation in the file.

(Id.) The ALJ is permitted to consider lack of treatment in his
credibility determination.

Based on the clear, convincing and specific reasons for par-
tially rejecting Burch’s pain testimony and the substantial evi-
dence to support his determination, we conclude that the ALJ
properly evaluated the testimony.

II. Consideration of Obesity

Burch next argues that the ALJ erred in failing to properly
consider her obesity throughout the sequential disability anal-
ysis. She asserts that the ALJ is required to consider the inter-
2878 BURCH v. BARNHART
active effects that obesity has on her other impairments and
the combined effect of those impairments.

Burch’s entire obesity argument relies on this Court’s
recent decision in Celaya v. Halter, 332 F.3d 1177 (9th Cir.
2003). However, that case is distinguishable from the case at
bar. In Celaya, this Court reasoned that the ALJ should have
considered obesity as a disabling factor in the sequential anal-
ysis, even though not explicitly raised by claimant, for three
reasons:

First, it was raised implicitly in Celaya’s report of
symptoms. Second, it was clear from the record that
Celaya’s obesity was at least close to the listing cri-
terion, and was a condition that could exacerbate her
reported illness. Third, in light of Celaya’s pro se
status, the ALJ’s observation of Celaya and the
information on the record should have alerted him to
the need to develop the record in respect to her obe-
sity.

Id. at 1182.

Here, the record does not indicate that Burch’s obesity
exacerbated her other impairments (other than possibly her
back pain). More significantly, Burch was represented by
counsel. While this Court mentioned in Celaya that even
where a claimant is represented by counsel the ALJ has some
burden to develop the record, this Court did not specify the
parameters of that burden. Id.

[8] Under the circumstances in this case, we find that the
ALJ did not commit reversible error by not considering
Burch’s obesity in step two of the sequential analysis.
According to the Social Security Rules, obesity, as other med-
ical impairments, will be deemed a “severe” impairment,
“when alone or in combination with another medically deter-
minable physical or mental impairment(s), it significantly lim-
 BURCH v. BARNHART 2879
its an individual’s physical or mental ability to do basic work
activities.” SSR 02-01p (2002). In determining whether a
claimant’s obesity is a severe impairment, an ALJ must “do
an individualized assessment of the impact of obesity on an
individual’s functioning.” Id.

Here, the ALJ did not find that Burch’s obesity was a “se-
vere” impairment: “The medical evidence indicates that the
claimant has status post carcinoma of the left breast, status
post right simple mastectomy, lumbar degenerative disc dis-
ease and chronic obstructive pulmonary disease, which are
severe within the meaning of the Regulations . . . .” (Decision,
Nov. 16, 2000, at 2.) Assuming without deciding that this
omission constituted legal error, it could only have prejudiced
Burch in step three (listing impairment determination) or step
five (RFC) because the other steps, including this one, were
resolved in her favor.

[9] The ALJ did not err in concluding in step three that
Burch’s impairments did not meet or equal a listing impair-
ment. As obesity is not a separately listed impairment, a
claimant will be deemed to meet the requirements if “there is
an impairment that, in combination with obesity, meets the
requirements of a listing.” SSR 02-01p (2002).

Equivalence may also be determined if a claimant has mul-
tiple impairments, including obesity, none of which meets the
listing requirement, but which when viewed in the aggregate
are equivalent to a listed impairment. See id. The Rule how-
ever explains that:

[An ALJ] will not make assumptions about the
severity or functional effects of obesity combined
with other impairments. Obesity in combination with
another impairment may or may not increase the
severity or functional limitations of the other impair-
ment. [The ALJ] will evaluate each case based on
the information in the case record.
2880 BURCH v. BARNHART
Id. (emphasis added).

Although Burch contends that the ALJ erred in not consid-
ering obesity in determining whether she meets or equals a
listing impairment, she does not specify which listing she
believes she meets or equals. Further, she does not set forth
any evidence which would support the diagnosis and findings
of a listed impairment. 20 C.F.R. § 404.1525(d). The district
court correctly explained that Burch “bears the burden of
proving that . . . she has an impairment that meets or equals
the criteria of an impairment listed in Appendix 1 of the Com-
missioner’s regulations.” (Order, Mar. 24, 2003, at 14.) This
Court has held that a claimant carries the initial burden of
proving a disability. See Swenson v. Sullivan, 876 F.2d 683,
687 (9th Cir. 1989).

An ALJ is not required to discuss the combined effects of
a claimant’s impairments or compare them to any listing in an
equivalency determination, unless the claimant presents evi-
dence in an effort to establish equivalence. See Lewis v. Apfel,
236 F.3d 503, 514 (9th Cir. 2001) (in distinguishing Marcia
v. Sullivan, 900 F.2d 172 (9th Cir. 1990), this Court deter-
mined that the ALJ’s failure to consider equivalence was not
reversible error because the claimant did not offer any theory,
plausible or otherwise, as to how his impairments combined
to equal a listing impairment).

[10] As the Social Security Ruling explains, each case
should be evaluated based on the record. SSR 02-01p (2002).
The district court properly noted:

There was no evidence before the ALJ, and none in
the record, which states that claimant’s obesity limits
her functioning. Neither treatment notes nor any
diagnoses addressed claimant’s limitations due to
obesity. The medical record is silent as to whether
and how claimant’s obesity might have exacerbated
her condition. Moreover, claimant did not present
 BURCH v. BARNHART 2881
any testimony or other evidence at her hearing that
her obesity impaired her ability to work.

(Order, Mar. 24, 2003, at 13.) Even on appeal, Burch has not
pointed to any evidence of functional limitations due to obe-
sity which would have impacted the ALJ’s analysis. In fact,
the only evidence in the record relating to her obesity are
notes from doctors who observed weight gain, indicated that
Burch is obese, and recommended that she participate in a
medically supervised weight loss program. We therefore con-
clude that the ALJ did not commit reversible error by failing
to consider Burch’s obesity in determining whether she met
or equaled the requirements of a listed impairment.

Finally, the ALJ did not err in step five of the analysis as
he considered Burch’s obesity in making his determinations
regarding RFC and vocational ability. According to the Social
Security Rules, in evaluating obesity to determine a claim-
ant’s RFC, the ALJ’s assessment “must consider an individu-
al’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continu-
ing basis.” SSR 02-01p (2002). As with other impairments,
the ALJ should explain how he determined whether obesity
caused any physical or mental impairments. See id.

Further, as Social Security Ruling 96-8p (1996) provides:

In assessing RFC, the adjudicator must consider only
limitations and restrictions imposed by all of an indi-
vidual’s impairments, even those that are not “se-
vere.” While a “not severe” impairment(s) standing
alone may not significantly limit an individual’s
ability to do basic work activities, it may—when
considered with limitations or restrictions due to
other impairments—be critical to the outcome of a
claim.

Here, the ALJ acknowledged that physicians’ notes indicate
Burch gained approximately 25 pounds in two months, that
2882 BURCH v. BARNHART
she weighed 222 pounds in February 2000 and that she is
“somewhat obese.” (Decision, Nov. 16, 2000, at 2, 3, 4.) He
also recognized that Burch’s obesity likely contributed to her
back discomfort. (Id. at 4.) After weighing the evidence, the
ALJ concluded that Burch has the RFC to perform a signifi-
cant (though not full) range of light work: “She is able to lift
and carry 20 pounds occasionally and 10 pounds frequently,
and sit, stand and/ or walk six hours per day. Additionally, she
is precluded from activities requiring frequent reaching over-
head. She must also avoid concentrated exposure to pulmo-
nary irritants.” (Id. at 6.)

[11] Based on the record, the ALJ adequately considered
Burch’s obesity in his RFC determination. Burch has not set
forth, and there is no evidence in the record, of any functional
limitations as a result of her obesity that the ALJ failed to
consider.

Burch argues that the ALJ should have included obesity in
the hypothetical to the vocational expert. As she asserts, the
issue of whether an individual who is obese can compete in
the competitive workforce is a question best left to a voca-
tional expert. We disagree, and find no error in the hypotheti-
cal given. The ALJ presented all of Burch’s limitations and
restrictions supported by the record to the vocational expert.
See Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989).
There is no additional burden on the ALJ to question the
vocational expert regarding the existence of discrimination in
the job market based on obesity. Burch has not cited, and we
have not found, any support for this novel approach.

Because the ALJ provided legally sufficient reasons for
partially rejecting Burch’s pain testimony and the ALJ prop-
erly considered Burch’s obesity to the extent required based
on the record, we affirm.

AFFIRMED.