Billy McGuire v. Kilolo Kijakazi

FILED
NOT FOR PUBLICATION
DEC 10 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BILLY LEE MCGUIRE, No. 20-35898
Plaintiff-Appellant, D.C. No. 3:20-cv-05095-MAT
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted December 7, 2021**
San Francisco, California
Before: LUCERO,*** IKUTA, and VANDYKE, Circuit Judges.
Billy McGuire appeals the district court’s decision affirming the Social
Security Commissioner’s denial of his application for disability insurance benefits
*
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 Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
under Title II of the Social Security Act. We review the district court’s decision
upholding the Administrative Law Judge’s (ALJ) determination de novo. Molina
v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded on other grounds by 20
C.F.R. § 404.1502(a). We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g).
Because an ALJ “may attribute as much or as little weight” to a state finding
of disability as the ALJ “deems appropriate,” Wilson v. Heckler, 761 F.2d 1383,
1385 (9th Cir. 1985) (citation omitted), the ALJ did not err in rejecting the
Washington Department of Labor and Industries’ finding that McGuire was
permanently disabled on the grounds that the finding was inconsistent with the
opinions of examining doctors, objective medical evidence, McGuire’s daily
activities, and McGuire’s improvement with treatment.
The ALJ did not err in discounting the opinions of McGuire’s treating
doctors and certain other medical providers that he was unable to work, because
these opinions were contradicted by examining doctors, and the ALJ gave “specific
and legitimate reasons” for his decision. Ford v. Saul, 950 F.3d 1141, 1154 (9th
Cir. 2020) (citation omitted). In rejecting the specified medical opinions, the ALJ
reasonably relied on McGuire’s daily activities and physician notes from one of
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McGuire’s intake visits that injections provided McGuire with sustained pain
relief.
The ALJ did not commit reversible error in omitting discussion of
McGuire’s diagnosis for sciatica in its step two analysis, where the ALJ considers
whether the claimant has a “severe” impairment. 20 C.F.R. § 404.1520(c). When
determining McGuire’s residual function capacity in subsequent steps, the ALJ
considered the symptoms that McGuire associated with sciatica, namely falling,
pain, and the use of a cane. Therefore, any error at step two was harmless. See
Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
The ALJ did not err in rejecting McGuire’s testimony about the severity of
his symptoms. The ALJ found that McGuire “engages in daily activities
inconsistent with the alleged symptoms,” which provided a “specific, clear and
convincing reason[ ]” to discount his testimony. Lingenfelter v. Astrue, 504 F.3d
1028, 1036–40 (9th Cir. 2007) (cleaned up). The ALJ found that McGuire used an
above-ground pool and drove a high-clearance truck, which the ALJ could
reasonably have concluded was inconsistent with a determination that McGuire
could never climb ladders or stairs. The ALJ also found that McGuire practiced
yoga, which the ALJ could reasonably have concluded was inconsistent with a
determination that McGuire could never twist or bend. McGuire also “helped
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around the house, assisted his home-schooled son with projects,” “played games
with his children,” “went grocery shopping,” and “prepared food.” The ALJ could
reasonably have concluded that these activities “contradict claims of a totally
debilitating impairment.” Molina, 674 F.3d at 1113 (citations omitted).
The ALJ properly considered the lay witness testimony of McGuire’s family
and friend. The ALJ reasonably found that this testimony was inconsistent with
McGuire’s improvement with treatment, which was a “germane reason” for
discounting the lay testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.
2005) (citation omitted). According to McGuire’s testimony and the medical
evidence in the record, injections provided McGuire with pain relief lasting two
months or more, contradicting his wife’s statement that the injections helped only
for the duration of an airplane flight.
McGuire’s testimony that he uses a cane did not preclude the ALJ from
finding that McGuire could perform the jobs identified by the vocational expert.
First, the vocational expert testified that the use of a cane would not prevent
McGuire from performing the sedentary jobs he identified. Second, when
determining McGuire’s residual functional capacity, the ALJ expressly considered
the minimal limitations imposed by McGuire’s use of a cane, including that in
medical exams, McGuire could walk without a cane “without antalgia,” “on heels
4
and toes,” and “with a normal gait.” And McGuire was able to perform his daily
activities.
AFFIRMED.
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