Donald Mizerik v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 20, 2022
• Docket: 18-16667
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 20 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.