Bolinaga v. Commissioner of Social Security Administration

Filing 18

ORDER - The ALJ's decision is AFFIRMED. The Clerk of Court is directed to terminate this case and enter judgment accordingly. Signed by Judge G Murray Snow on 6/19/2017. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Andres Bolinaga, Jr.,

No. CV-16-02713-PHX-GMS

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff Andres Bolinaga’s appeal of the Social

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Security Administration’s decision to deny benefits. (Doc. 1.) For the reasons set forth

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below, the Court affirms the decision.
BACKGROUND

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On June 8, 2012, Andres Bolinaga applied for disability insurance benefits,

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alleging a disability onset date of January 1, 2010. (Tr. 18.) Bolinaga’s claim was denied

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both initially and upon reconsideration. (Id.) He then appealed to an Administrative Law

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Judge (“ALJ”). (Id.) The ALJ conducted a hearing on the matter on September 11, 2014.

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(Tr. 42.)

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In evaluating whether Bolinaga was disabled, the ALJ undertook the five-step

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sequential evaluation for determining disability.1 At step one, the ALJ determined that

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Bolinaga had not engaged in substantial gainful activity since his alleged onset date. (Tr.

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20.) At step two, the ALJ determined that Bolinaga suffered from severe impairments of

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“coronary artery disease, status post coronary artery bypass graft and stents; and chronic

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obstructive pulmonary disease (COPD).” (Id.) At step three, the ALJ determined that

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none of these impairments, either alone or in combination, met or equaled any of the

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Social Security Administration’s listed impairments. (Tr. 27–28.)

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The ALJ then made the following determination of Bolinaga’s residual functional
capacity (“RFC”):2

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[T]he claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except he had
environmental limitations and should avoid even moderate
exposure to extreme cold, avoid even moderate exposure to
extreme heat, and avoid even moderate exposure to fumes,
odors, dusts, gases, poor ventilation, etc.

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The five-step sequential evaluation of disability is set out in 20 C.F.R. § 404.1520
(governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing
supplemental security income). Under the test:

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A claimant must be found disabled if she proves: (1) that she
is not presently engaged in a substantial gainful activity[,] (2)
that her disability is severe, and (3) that her impairment meets
or equals one of the specific impairments described in the
regulations. If the impairment does not meet or equal one of
the specific impairments described in the regulations, the
claimant can still establish a prima facie case of disability by
proving at step four that in addition to the first two
requirements, . . . she is not able to perform any work that she
has done in the past. Once the claimant establishes a prima
facie case, the burden of proof shifts to the agency at step five
to demonstrate that the claimant can perform a significant
number of other jobs in the national economy. This step-five
determination is made on the basis of four factors: the
claimant’s residual functional capacity, age, work experience
and education.

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Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal citations and
quotations omitted).

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RFC is the most a claimant can do despite the limitations caused by his impairments.
See S.S.R. 96-8p, 1996 WL 374184 (July 2, 1996).
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(Tr. 28.) The ALJ therefore found that Bolinaga retained the RFC to perform his past

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relevant work as a “computer information technology (IT) manager.” (Tr. 32.) The ALJ

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found that this work best fit the Dictionary of Occupational Titles (“DOT”) listing for

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“Systems Programmer,” but noted that to the extent the work might also be characterized

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as “Support Analyst Supervisor” or “Systems Analyst,” Bolinaga retained the RFC to

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perform those jobs as well. (Id.)

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On June 8, 2016, the Appeals Council declined to review the decision. (Tr. 1.)

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Bolinaga filed the complaint underlying this action on August 10, 2016, seeking this

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Court’s review of the ALJ’s denial of benefits. (Doc. 1.)

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DISCUSSION
I.

Standard of Review

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A reviewing federal court need only address the issues raised by the claimant in

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the appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir.

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2001). A federal court may set aside a denial of disability benefits only if that denial is

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either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart,

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278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less

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than a preponderance.”

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evidence which, considering the record as a whole, a reasonable person might accept as

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adequate to support a conclusion.” Id. (quotation omitted).

Id. (quotation omitted).

“Substantial evidence is relevant

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The ALJ is responsible for resolving conflicts in testimony, determining

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credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

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1995).

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interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec.

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Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the

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reviewing court must resolve conflicts in evidence, and if the evidence can support either

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outcome, the court may not substitute its judgment for that of the ALJ.” Matney v.

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Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). However, the Court

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“must consider the entire record as a whole and may not affirm simply by isolating a

“When the evidence before the ALJ is subject to more than one rational

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‘specific quantum of supporting evidence.’” Id. (citing Hammock v. Bowen, 879 F.2d

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498, 501 (9th Cir. 1989)). Nor may the Court “affirm the ALJ’s . . . decision based on

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evidence that the ALJ did not discuss.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.

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2003).

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II.

Analysis

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Bolinaga contends that the ALJ (1) failed to consider evidence that would

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demonstrate that Bolinaga met the step three listing for coronary artery disease; (2) failed

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to correctly categorize Bolinaga’s past relevant work; and (3) improperly discredited

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Bolinaga’s pain testimony based on his daily activities.

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A.

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At step three, the ALJ must “consider[] whether the [claimant’s] impairment or

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combination of impairments meets or equals a listed impairment.” Burch v. Barnhart,

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400 F.3d 676, 679 (9th Cir. 2005). Bolinaga contends that the ALJ should have found

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Bolinaga to meet Listing 4.04(C), for coronary artery disease. That listing is met by:

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Step Three Listing

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Coronary artery disease, demonstrated by angiography
(obtained independent of Social Security disability
evaluation) or other appropriate medically acceptable
imaging, and in the absence of a timely exercise tolerance test
or a timely normal drug-induced stress test, an MC,
preferably one experienced in the care of patients with
cardiovascular disease, has concluded that performance of
exercise tolerance testing would present a significant risk to
the individual, with both 1 and 2:

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1. Angiographic evidence showing:

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a. 50 percent or more narrowing of a nonbypassed left main
coronary artery; or

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b. 70 percent or more narrowing of another nonbypassed
coronary artery; or
c. 50 percent or more narrowing involving a long (greater
than 1 cm) segment of a nonbypassed coronary artery; or

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d. 50 percent or more narrowing of at least two nonbypassed
coronary arteries; or

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e. 70 percent or more narrowing of a bypass graft vessel; and

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2. Resulting in very serious limitations in the ability to
independently initiate, sustain, or complete activities of daily
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living.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.04(C).
The ALJ considered, in his earlier step two analysis, numerous medical records
that indicate that Bolinaga met the portion of the listing dealing with angiographic
evidence. With respect to the narrowing of blood vessels, the ALJ summarized the
following records:
The claimant underwent a left heart catheterization and
selective coronary angiography on January 22, 2010, which
revealed significant narrowing in multiple arteries, and Dr.
Khan, a cardiologist, recommended surgical revascularization
(Exhibit 8F, p. 84).
[. . .]

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On December 7, 2011, the claimant underwent a left heart
catheterization, selective coronary angiography, and other
diagnostic testing, which revealed a normal left main
coronary artery, but a right coronary artery with more than
90% narrowing, and a totally occluded saphenous vein graft
(Exhibit 8F, pp. 17–19). The stent-supported angioplasty of
the mid right coronary artery was successful (Exhibit 8F, p.
19).

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[. . .]

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On July 18, 2012, the claimant underwent a left heart
catheterization and various angiographies, which revealed
severe multi-vessel coronary artery disease with a totally
occluded saphenous vein graft (Exhibit 8F, pp. 42–43). A left
ventriculography showed an ejection fraction of 60–65%
(Exhibit 8F, p. 43).

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[. . .]
The claimant was hospitalized at Banner Thunderbird
Medical Center from April 29, 2013 to May 1, 2013 for some
atypical chest pain (Exhibit 19F, p. 2). The atypical chest
pain resolved (id.). A cardiac catheterization showed severe
multi-vessel coronary artery disease and a totally occluded
saphenous vein graft, but medical management was
recommended (id.). Other diagnoses included hypertension,
diabetes mellitus, hyperlipidemia, hypothyroidism, and
obesity (id.).
[. . .]
On December 22, 2013, the claimant underwent a left heart
catheterization and selective coronary angiography (Exhibit
31F, p. 25). The left main artery was angiographically
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normal, the left anterior descending artery was totally
occluded with patent left internal mammary artery graft, the
large principal diagonal artery had patent stents, the obtuse
marginal branch of the left circumflex artery and right
coronary artery codominant had patent stents, and left
ventricular systolic function was normal (Exhibit 31F, p. 26).

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(Tr. 21–26.) Thus Bolinaga’s argument that “the ALJ ignored all evidence that would

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lead to finding Plaintiff met Listing 4.04(C),” (Doc. 12 at 15), is at odds with the ALJ’s

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opinion. To the extent that the ALJ did not explicitly discuss these records in his step

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three analysis, it was unnecessary for the ALJ to do so. See Gonzalez v. Sullivan, 914

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F.2d 1197, 1200–01 (9th Cir. 1990) (upholding ALJ’s step three determination when the

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ALJ “made a five page, single-spaced summary of the record” but did not “state what

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evidence supported the conclusion that appellant’s impairments do not meet or exceed the

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Listing of Impairments”).

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Nor does this evidence alone establish that Bolinaga meets Listing 4.04(C); as the

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Supreme Court has explained, “[f]or a claimant to show that his impairment matches a

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listing, it must meet all of the specified medical criteria” and “an impairment that

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manifests only some of those criteria, no matter how severely, does not qualify.”

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Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

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indicating that Bolinaga’s coronary artery disease did not “result[] in very serious

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limitations in the ability to independently initiate, sustain, or complete activities of daily

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living.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.04(C).

The ALJ cited substantial evidence

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For example, the ALJ noted that in February 2010, Bolinaga “denied any

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significant shortness of breath, was able to ambulate, denied chest pain, except for

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incisional pain of the sternum, and denied syncope or palpitations.” (Tr. 21.) In June

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2012, Bolinaga suffered from “vertigo/dizziness” but there was no indication that this

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was related to his coronary artery disease, as the treating physician “concluded that the

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dizziness was of unclear etiology.” (Tr. 23.) Likewise, while Bolinaga complained in

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April 2014 of intermittent pulmonary symptoms, “aggravated by moderate activity,” (Tr.

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27), the records of that visit indicate that these symptoms were related to his COPD,

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rather than coronary artery disease. (Tr. 2145.)

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It is the claimant’s burden to demonstrate that his impairment meets or equals a

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listing. Burch, 400 F.3d at 683. Bolinaga fails to address the “serious limitations”

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criterion of Listing 4.04(C) in his opening brief altogether, and while he points to certain

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limitations in his reply brief, he only ties one to his coronary artery disease specifically—

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as opposed to his COPD or pain from his shattered sternum. That asserted limitation is

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that Bolinaga “was hospitalized ten times for his coronary artery disease” during the time

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period at issue.

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hospitalizations, without more, satisfy the “serious limitations” criterion of Listing

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4.04(C). Indeed, courts have expressly declined in other contexts to “presum[e] that any

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condition requiring temporary hospitalization is disabling.” Burch v. Coca-Cola Co., 119

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F.3d 305, 317 (5th Cir. 1997) (Americans with Disabilities Act); see also Taylor v. U.S.

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Postal Serv., 946 F.2d 1214, 1217 (6th Cir. 1991) (Rehabilitation Act). It was not error

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in this context for the ALJ to find that ten hospitalizations—a number of which appear to

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be for only one night—spread out over nearly five years did not seriously interfere with

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Bolinaga’s activities of daily life. Moreover, as the ALJ noted, many of the records of

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these hospital visits indicate that the chest pain for which the claimant was admitted was

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not related to heart disease.

But Bolinaga points to no authority holding that sporadic

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Further, the ALJ properly relied on the opinions of the two state agency physicians

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who found that Bolinaga did not meet a listing at step three. (Tr. 61–97.) While an ALJ

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is not bound by the state agency physicians’ opinion as to whether a claimant meets or

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equals a listing, he must give such evidence appropriate weight. See S.S.R. 96-6p, 1996

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WL 374180, at *3 (July 2, 1996).

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In sum, the ALJ had substantial evidence by which he could reasonably conclude
that Bolinaga had not met his burden at step three.

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B.

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In determining at step four that Bolinaga could perform his past relevant work, the

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Past Relevant Work

ALJ wrote the following:

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The claimant has past relevant work as a computer IT
manager, which he has described as a technical manager or
help desk supervisor/system administrator in the computer
software business, and which he performed at the medium
level of exertion. The claimant performed this work within
the last 15 years at a substantial gainful activity level and long
enough to learn how to do it. Initially, a State Agency
disability analyst determined that the claimant’s past relevant
work is best characterized in the Dictionary of Occupational
Titles (DOT) as User Support Analyst Supervisor (DOT
032.132-010), which is sedentary and skilled (SVP 8) work,
and/or Systems Analyst (DOT 030.167-014), which is
sedentary and skilled (SVP 7) work. On reconsideration, a
State Agency disability analyst determined that claimant’s
past relevant work is best characterized in the DOT as
Systems Programmer (DOT 030.162-022), which is sedentary
and skilled (SVP 7) work. The undersigned may take
administrative notice of the DOT and adopts the
characterization of Systems Programmer. Given that all of
these DOT characterizations are for sedentary work and none
of them requires exposure to temperature extremes or
pulmonary irritants, the ultimate outcome of this case will
remain the same even if a reviewing authority were to choose
User Support Analyst Supervisor and/or Systems Analyst.

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In comparing the claimant’s residual functional capacity with
the physical and mental demands of this work, the
undersigned finds that the claimant was able to perform it as
generally performed. The residual functional capacity given
above . . . does not preclude the performance of the
occupation of Systems Programmer, User Support Analyst
Supervisor, and Systems Analyst as generally performed.

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(Tr. 32.)

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Bolinaga asserts that the ALJ erred in classifying his past relevant work as

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Systems Programmer, in part because “[t]here is no indication that Plaintiff did any

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programming or coding at his past job or that he knows how to code.” (Doc. 12 at 18.)

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But the DOT’s description of Systems Programmer does not include programming or

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coding as such:

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Coordinates installation of computer operating system
software and tests, maintains, and modifies software, using
computer terminal: Reads loading and running instructions
for system software, such as task scheduling, memory
management, computer file system, or controlling computer
input and output, and loads tape into tape drive or transfers
software to magnetic disk. Initiates test of system program
and observes readout on monitor of computer system to detect
errors or work stoppage. Enters code changes into computer
system to correct errors. Analyzes performance indicators,
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such as system’s response time, number of transactions per
second, and number of programs being processed at once, to
ensure that system is operating efficiently. Changes system
software so that system performance will meet objectives.
Reviews computer system capabilities, workflow, and
scheduling limitations to determine if requested changes to
operating system are possible. Writes description of steps
taken to modify system and procedures required to implement
new software. Assists users having problems with use of
system software. May train users, COMPUTER OPERATOR
(clerical) 213.362-010, and COMPUTER PROGRAMMER
(profess. & kin.) 030.162-010 to use system software. May
prepare workflow charts and diagrams to modify system
software. May visit vendors to observe demonstration of
systems software. May administer and monitor computer
program that controls user access to system. May review
productivity reports and problem records to evaluate
performance of computer system.

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U.S. Dep’t of Labor, Dictionary of Occupational Titles § 030.162-022, 1991 WL 646545

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(2016).

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Bolinaga described his past relevant work in similar terms. He did help desk

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work, where people would call with questions about both software and hardware. (Tr.

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45.) He “supervised technicians helping software customers” and helped customers with

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complicated questions himself, as well as “maintained [an] in-house computer and

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network.” (Tr. 217.) It was reasonable for the ALJ to classify this work as a System

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Programmer, even if Bolinaga’s description of his past work did not include every task

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listed in the DOT. See Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (noting that

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the DOT describes occupations, not jobs, and that consequently it may include tasks that

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are not essential for a specific job within a broad occupational classification).

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The ALJ found that Bolinaga retained the RFC to perform this work. As Systems

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Programmer is classified as “sedentary work,” and Bolinaga’s RFC permits him to

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perform up to “light work,” this was not erroneous. See 20 C.F.R. § 404.1567(b) (“If

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someone can do light work, we determine that he or she can also do sedentary work,

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unless there are additional limiting factors such as loss of fine dexterity or inability to sit

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for long periods of time.”). Nor did the ALJ err, as Bolinaga asserts, in failing to

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consider whether changes in computer technology between 2008 and the present day

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make Bolinaga’s past relevant work less relevant. See 20 C.F.R. 404.1560(b)(3) (“If we

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find that you have the residual functional capacity to do your past relevant work, we will

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determine that you can still do your past work and are not disabled. We will not consider

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your vocational factors of age, education, and work experience or whether your past

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relevant work exists in significant numbers in the national economy.”).

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The claimant bears the burden of showing at step four that he cannot perform his

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past relevant work. Pinto v. Massanari, 249 F.3d 940, 844 (9th Cir. 2001). The ALJ did

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not err in concluding that Bolinaga did not meet this burden.

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C.

Credibility Analysis

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The ALJ found that Bolinaga’s “statements concerning the intensity, persistence

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and limiting effects of [his] symptoms are not entirely credible for the reasons explained

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in this decision.” (Tr. 29.) In so doing, the ALJ found that (1) “[t]he objective medical

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evidence and claimant’s treatment history support the need for work restrictions, but they

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do not substantially support the claimant’s allegation that he is unable to work”; and (2)

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“[t]he claimant’s reported activities and demonstrated abilities contradict the alleged

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degree of impairment severity.” (Tr. 29–30.)

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Bolinaga does not address the numerous portions of the medical record that

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contradict his assertions of an inability to work as cited to by the ALJ. “Contradiction

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with the medical record is a sufficient basis for rejecting the claimant’s subjective

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testimony.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir.

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2008).

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exercise. (Tr. 30, 405, 1488, 1500, 2268, 2277.) The ALJ reasonably inferred that

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Bolinaga’s “treating sources would [not] make such a recommendation unless they

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believed the claimant capable of doing so safely.” (Tr. 30.)

As the ALJ noted, Bolinaga’s treating physicians consistently told him to

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The ALJ reasonably relied on numerous portions of the record indicating that

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Bolinaga’s symptoms were not as severe as he testified. For example, in December 2012,

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Bolinaga reported that he suffered “mild” dyspnea, “occasionally,” which was aggravated

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by activity such as climbing stairs and running. (Tr. 24, 1579.) He denied any chest

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pressure, fatigue, or substernal chest pain. (Tr. 24, 1579.) The following month, in

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January 2013, he reported that he had not had any significant anginal-type chest pains.

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(Tr. 24, 1842.) In March 2013, while Bolinaga complained of fatigue while doing yard

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work, he also denied any chest discomfort, any anginal-type episodes, and any shortness

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of breath. (Tr. 24, 1837.) In September 2013, Bolinaga reported difficulty walking due

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to lower extremity pain, but said he was doing “okay” from a cardiac standpoint and had

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had no anginal-type episodes. (Tr. 25, 2243.) In October 2013, he again reported

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“intermittent” and “mild” dyspnea but denied chest pressure and substernal chest pain.

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(Tr. 25, 1984.)

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Further, the record demonstrates that Bolinaga performed well on medical exercise

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tests. In June 2013, Bolinaga performed a six-minute walk test; he walked 1,000 feet,

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was only “very slightly (just noticeabl[y])” out of breath, saw his heart rate increase from

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73 beats per minute to 90, and his oxygen saturation decrease from 92% to 90%. (Tr. 25,

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1934.) Likewise, in November 2013, Bolinaga performed a stress test, in which he

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reached his target heart rate, had normal EKG readings, and saw his shortness of breath

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resolve in the recovery phase. (Tr. 26, 2255.)

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Bolinaga only challenges the sufficiency of the ALJ’s reasoning as to Bolinaga’s
daily activities.3 (Doc. 12 at 20–22.)

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Daily activities that are “transferable to a work setting” may be used to discredit a

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claimant’s testimony of work-preclusive symptoms. See Morgan v. Comm’r of Soc. Sec.

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Admin., 169 F.3d 595, 600 (9th Cir. 1999). The ALJ primarily relied on two function

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reports completed by Bolinaga to demonstrate that Bolinaga engaged in daily activities

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that are transferable to the work setting. (Tr. 30–31, 225, 252.) In those reports,

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Bolinaga reported that on an average day he would:

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Feed cats, dogs, myself, take medicine, water plants in yard,

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In his Reply, Bolinaga briefly addresses the treating physicians’ recommendation of
exercise, and the results of a single exercise test. (Doc. 17 at 6.) He does not address the
other medical records the ALJ discussed, and at any rate, arguments not raised in the
opening brief are waived. Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 858
n.4 (9th Cir. 1999).
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read, watch TV, nap in morning, read, watch TV, clean
house, nap in afternoon, try to ride exercise bike, take
medicine, read, watch TV, eat, go to sleep. Also clean litter
box for cats.

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(Tr. 223.) He reported that he went to “church, grocery store, [and] college class” on a

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regular basis, though was not always able to do so, and that he could usually finish what

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he started. (Tr. 227–28.) He was able to drive a car. (Tr. 253.) The ALJ accurately

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summarized the contents of these reports, including that certain activities could only be

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completed “when able.” (Tr. 31.)

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The Ninth Circuit has previously found that a claimant’s “ability to fix meals, do

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laundry, work in the yard, and occasionally care for his friend’s child” may suffice as a

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clear and convincing reason to discredit his testimony of being unable to work. Morgan,

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169 F.3d at 599–600. Here, similarly, Bolinaga’s ability to fix meals, do housework and

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sometimes yardwork, care for pets, and maintain an active—albeit sometimes limited—

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social life is a clear and convincing reason that he has the ability to work, especially

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given that his past relevant work is sedentary.

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conditions do not affect his ability to see, hear, talk, concentrate, follow instructions, get

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along with others, use his hands, understand, remember, or complete tasks. (Tr. 228,

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255.) That these abilities remain unaffected, and that Bolinaga carries out other activities

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in spite of certain limitations, serve as clear and convincing evidence that he is capable of

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working.

Bolinaga reported that his medical

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The ALJ thus had substantial evidence in the record which he could reasonably

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interpret as contradicting Bolinaga’s assertions of work-preclusive symptoms. The Court

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does not second-guess the ALJ’s reasonable interpretation of the record, Matney, 981

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F.2d at 1016, and this reasonable interpretation—along with Bolinaga’s daily activities—

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is a clear and convincing reason to find Bolinaga’s symptom testimony less than fully

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credible.

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CONCLUSION
The ALJ did not err in denying Bolinaga’s application for benefits, and the
decision is affirmed.
IT IS THEREFORE ORDERED that the ALJ’s decision is AFFIRMED. The
Clerk of Court is directed to terminate this case and enter judgment accordingly.
Dated this 19th day of June, 2017.

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Honorable G. Murray Snow
United States District Judge

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