Donald Mizerik v. Kilolo Kijakazi

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD MIZERIK, No. 18-16667
Plaintiff-Appellant, D.C. No. 3:18-cv-01241-MEJ
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Submitted January 20, 2022**
Before: D.W. NELSON, BRESS, and BUMATAY, Circuit Judges.
Donald Mizerik appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits (“DIB”) under Title II of the Social Security Act. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo, Ford v. Saul, 950 F.3d 1141, 1154
(9th Cir. 2020) (citation omitted), and we affirm.
The administrative law judge (“ALJ”) properly considered Mizerik’s anxiety
in finding that he had the residual functional capacity to perform the full range of
light work and was capable of performing his past relevant work. The fact that
Mizerik was prescribed anti-anxiety medication did not establish a severe mental
impairment. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (reasoning
that “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s
testimony regarding severity of an impairment.”) (citation omitted); see Verduzco
v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (reasoning that a diagnosis alone
does not establish severity). In assessing Mizerik’s mental impairment, the ALJ
properly employed the “special technique” applicable at the time of his decision in
September 2017. See 20 C.F.R. § 404.1520a (effective Mar. 27, 2017).
Substantial evidence, including the opinions of three doctors, supports the ALJ’s
finding that the claimant had no severe mental impairment. See Ford, 950 F.3d at
1154.
Substantial evidence also supports the ALJ’s finding that Mizerik’s bowel
symptoms would not interfere with his work. The ALJ appropriately considered
the frequency and duration of Mizerik’s symptoms and properly concluded that he
could drive to work. See 20 C.F.R. § 402.1429(c)(3)(ii); Burch v. Barnhart, 400
2
F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one
rational interpretation, it is the ALJ’s conclusion that must be upheld.”) (citation
omitted). Any error in the ALJ’s reference to incontinence products was harmless.
See Ford, 950 F.3d at 1154.
AFFIRMED.
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