Billy McGuire v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2021
• Docket: 20-35898
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 10 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded on other grounds by 20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

2 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

3 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.