Gary Arago v. Michael Astrue

FILED
NOT FOR PUBLICATION NOV 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY ARAGO, No. 10-16538
Plaintiff-Appellant, D.C. No. C-09-CV-3603-EMC
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, Magistrate Judge, Presiding
Submitted October 26, 2011 **
San Francisco, California
Before: GRABER and IKUTA, Circuit Judges, and KAPLAN,*** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lewis A. Kaplan, Senior United States District Judge for
the Southern District of New York, sitting by designation.
Gary Arago appeals the district court’s grant of summary judgment in favor of
Michael Astrue, Commissioner of the Social Security Administration. The district
court determined that the administrative law judge’s (“ALJ”) findings that Arago was
not disabled and that he was not entitled to disability insurance or supplemental
security income (“SSI”) benefits were supported by substantial evidence.
We have jurisdiction to review this petition under 28 U.S.C. § 1291. We review
de novo a district court’s order affirming the denial of social security benefits. See,
e.g., Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). A decision by the
Commissioner of Social Security will be affirmed as long as it is supported by
substantial evidence. See 42 U.S.C. § 405(g); see also Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005). We affirm the district court, which held that the ALJ
relied on substantial evidence in denying Arago’s claims for disability benefits and
SSI benefits.
The ALJ applied the five-step sequential evaluation process required under the
federal regulations. See Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003).
Relevant here, the ALJ relied on substantial evidence in determining that Arago’s
condition did not meet Listing 4.04C for ischemic heart disease. That listing requires
a showing not only of coronary artery disease, but also of “very serious limitations”
on activities of daily living. 20 C.F.R. pt. 404, subpt. P, app. 1, § 4.04C. The ALJ
2
permissibly found, relying on Arago’s medical records, that Arago failed to show such
limitations because he maintained an active lifestyle, including daily exercise for an
hour, a full complement of household chores, and frequent errands. See, e.g., Stubbs-
Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (noting that “‘cooking,
house cleaning, doing laundry, and helping her husband in managing finances’”
reflect that the “‘claimant has normal activities of daily living’”).
Moreover, the ALJ did not err in relying on the opinion of a non-treating
physician regarding Arago’s residual functional capacity. See Thomas v. Barnhart,
278 F.3d 948, 957 (9th Cir. 2002) (“The opinions of non-treating or non-examining
physicians may also serve as substantial evidence when the opinions are consistent
with independent clinical findings or other evidence in the record.”). Contrary to
Arago’s contentions, the regulatory scheme does not require that a treating physician
perform the consultative examination, 20 C.F.R. § 404.1519h, or that the agency
purchase an exercise test when, as here, it can determine whether a claimant qualifies
as disabled based on evidence already in its possession, 20 C.F.R., pt. 404, subpt. P,
app. 1, § 4.00(C)(6)(b).
Finally, substantial evidence supports the ALJ’s finding that Arago is capable
of modified “light work.” See 20 C.F.R. §§ 404.1567, 416.967; see also Osenbrock
v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001) (“Nor was the ALJ bound to accept as
3
true the restrictions set forth in the second hypothetical question if they were not
supported by substantial evidence.”). The medical evidence (and, indeed, his own
testimony) showed that Arago could comfortably walk up to a mile at a time and could
lift and carry 20 pounds occasionally and 10 pounds frequently.
AFFIRMED.
4