Robert Roscioli v. Kilolo Kijakazi ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 14 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT E. ROSCIOLI, No. 21-15145
Plaintiff-Appellant, D.C. No. 5:19-cv-03894-VKD
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Virginia K. DeMarchi, Magistrate Judge, Presiding
Submitted December 9, 2021**
San Francisco, California
Before: MURGUIA, Chief Judge, IKUTA, and VANDYKE, Circuit Judges.
Robert Roscioli appeals the district court’s decision affirming the Social
Security Commissioner’s denial of Roscioli’s disability claim. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).
*
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).
So long as substantial evidence supports an ALJ’s conclusion, even if the
record supports more than one rational interpretation of the evidence, “it is the
ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Here, substantial evidence—including medical opinion
evidence—supports the ALJ’s conclusion that Roscioli’s alleged mental
impairments were not severe. Although the ALJ made a clerical error in describing
Roscioli’s limitations as both “mild” and “moderate,” in context, the ALJ clearly
intended to classify Roscioli’s limitations as “mild,” and this court “may affirm the
ALJ’s decision even if the ALJ made an error, so long as the error was harmless.”
Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
The ALJ gave specific, clear, and convincing reasons for rejecting Roscioli’s
testimony about the severity of his symptoms. Namely, the ALJ explained
Roscioli’s testimony was contradicted by (1) objective medical evidence, see
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001), (2) Roscioli’s ability to
play videogames, see Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021), and (3)
the fact that Roscioli had not received “the type of medical treatment one would
expect for a totally disabled individual,” as Roscioli impliedly claimed himself to
be, see Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). Further, because
Roscioli largely failed to provide testimony regarding his specific functional
2
limitations, but instead stated that his impairments left him unable to do
“[e]verything” he would normally do, any error by the ALJ in failing to further
specify the testimony he found not credible was harmless. Molina v. Astrue, 674
F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §
404.1502(a).
Because the ALJ provided specific, clear, and convincing reasons for
rejecting Roscioli’s subjective complaints, and because the testimony of Roscioli’s
girlfriend, Victoria Cardenas (a lay witness) was similar to such complaints, “it
follows that the ALJ also gave germane reasons for rejecting [Cardenas’s]
testimony.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009). In sum, (1) substantial evidence supports the ALJ’s finding that Roscioli’s
mental impairments were not severe, (2) the ALJ provided specific, clear, and
convincing reasons to discount Roscioli’s testimony, and (3) the ALJ provided
germane reasons to discount Cardenas’s testimony.
AFFIRMED.
3