Aric McGrary v. Kilolo Kijakazi ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIC W. MCGARY, No. 22-55454
Plaintiff-Appellant, D.C. No. 8:20-cv-01060-JPR
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Jean Rosenbluth, Magistrate Judge, Presiding
Submitted May 12, 2023**
Pasadena, California
Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,*** District
Judge.
Aric McGary appeals a district court judgment affirming the denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
application for Social Security disability benefits. We have jurisdiction under 28
U.S.C. § 1291 and affirm.
We review the district court’s decision de novo. Berry v. Astrue, 622 F.3d
1228, 1231 (9th Cir. 2010). However, the ALJ’s decision should be upheld unless
it “was not supported by substantial evidence in the record as a whole or if the ALJ
applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012).
1. The ALJ’s rejection of McGary’s testimony was supported by
“specific, clear and convincing reasons,” Garrison v. Colvin, 759 F.3d 995, 1014–
15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)),
including that McGary received relief from treatment and could independently
perform daily activities. Even assuming that opioids are not “conservative”
treatment, Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007), McGary also took
other medication, and the relief he experienced after other treatment supports the
ALJ’s conclusion that his back pain was not as severe as he claimed, see Tommasetti
v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). Moreover, McGary’s daily activities
support the ALJ’s decision. See Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir.
2005).1
1
The ALJ’s failure to address McGary’s phantom leg pain was harmless. The
only functional limitation caused by that pain alone was that McGary had to lie down
“monthly” because treatment did not help.
2
2. Because the ALJ’s rejection of McGary’s subjective symptom
testimony was not erroneous, neither was the rejection of his father’s testimony,
which mirrored McGary’s. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
685, 694 (9th Cir. 2009).
3. The ALJ’s rejection of Dr. Gulaya’s opinion was supported by
substantial evidence. Although Dr. Gulaya opined that McGary’s anxiety and
depression affected “his ability for sustained concentration” and limited “his
energy/motivation to do regular work,” Dr. Brawer opined that McGary’s “thinking
was organized and goal-directed” and that he “demonstrated adequate attention
span.” “The ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and for resolving ambiguities.” Ahearn v. Saul, 988 F.3d 1111,
1115 (9th Cir. 2021) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)).
4. The ALJ did not fail to address McGary’s mental impairments. The
ALJ’s acceptance of Dr. Brawer’s opinion was supported by substantial evidence,
and that opinion contradicted Dr. Moura’s conclusion that McGary was limited to
tasks involving “simple/detailed 1-3 steps,” and Dr. Brodeske’s similar findings.
AFFIRMED.
3