Gino Quartucci v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GINO R. QUARTUCCI, No. 20-35740
Plaintiff-Appellant, D.C. No. 3:19-cv-06041-BAT
v.
MEMORANDUM*
KILOLO KIJAKAZI,
Acting Commissioner of the Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian A. Tsuchida, Magistrate Judge, Presiding
Submitted July 8, 2021**
Seattle, Washington
Before: HAWKINS and IKUTA, Circuit Judges, and CALDWELL,*** District
Judge.
Gino R. Quartucci appeals the district court’s judgment affirming the
*
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 Karen K. Caldwell, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
Commissioner of Social Security’s decision denying Quartucci’s application for
supplemental security income under Title XVI of the Social Security Act. We
review the district court's decision de novo and may reverse the agency’s denial of
benefits only if it is not supported by substantial evidence or contains legal error.
Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017).
Quartucci argues that the administrative law judge (“ALJ”) erred in
discounting the opinion of examining psychologist Terilee Wingate, Ph.D., who
opined that Quartucci had “marked” limitations in the ability to perform certain
basic work activities. The ALJ, however, gave specific and legitimate reasons for
rejecting Dr. Wingate’s opinion, which was contradicted by the opinions of Dr.
Brown and Dr. Donahue, and those reasons are supported by substantial evidence
in the record. See Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). The ALJ
correctly determined that Dr. Wingate’s opinion was not supported by her own
evaluations or the treatment notes of Quartucci’s treating therapists, none of which
contains findings that would require the marked limitations that Dr. Wingate
assessed. The ALJ further correctly noted that the marked limitations were not
supported by the function report completed by Quartucci himself that indicated he
engages in a wide range of activities.
Quartucci argues that the ALJ erred in giving little weight to the opinion of
treating therapist Judith Oliver, who opined that Quartucci exhibited a “marked
2
inability to sustain a regular work routine . . . .” At the time that Quartucci filed
his application for benefits, mental health counselor associates like Oliver were not
considered “acceptable medical sources.” See Leon v. Berryhill, 880 F.3d 1041,
1046 (9th Cir. 2017) (applying regulations in effect at the time the social security
claim is filed); 20 C.F.R. § 416.913(a) (effective Sept. 3, 2013 to March 26, 2017).
Instead, Oliver would be considered an “other source.” See 20 C.F.R. § 416.913(d)
(effective Sept. 3, 2013 to March 26, 2017). For these sources, the ALJ must
provide “germane reasons” for rejecting their opinions. Leon, 880 F.3d at 1046.
The ALJ correctly determined that Oliver’s opinion was not supported by her own
treatment records showing “relatively benign findings.” This is at least a germane
reason for rejecting Oliver’s opinion.
Quartucci argues that the ALJ did not properly evaluate the findings of
treating ARNP Nancy Armstrong. But Armstrong did not provide an opinion as to
Quartucci’s ability to perform work-related functions, and Quartucci does not
explain how Armstrong’s treatment notes would support a finding that he is unable
to perform any such functions.
Quartucci argues that the ALJ erred by failing to consider the notes of a
Social Security facilitator who observed that, during his interview, Quartucci
avoided eye contact and that he had a flat affect. Even if the ALJ erred in failing to
3
mention these comments, they do not indicate that Quartucci has greater
limitations in the ability to perform work-related functions than the ALJ assessed.
Quartucci argues the ALJ incorrectly rejected his testimony that the reason
he could not do even a simple, unskilled job was because “he would not be able to
keep a consistent schedule,” be “fully oriented,” or know the “time, day, date, his
location, or even who he was.” The ALJ gave “clear and convincing” reasons for
rejecting this testimony. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595,
599 (9th Cir. 1999). The ALJ determined that no evidence in the record supported
such a limitation, and Quartucci points to no such evidence on appeal. In addition,
in making the credibility determination, the ALJ gave “significant weight” to the
non-examining state agency psychological consultants, both of whom determined
that Quartucci was either not significantly limited in the ability to perform certain
identified work activities or that he had only moderate limitations, which were
incorporated into the Residual Functional Capacity (“RFC”) assessment.
Further, the ALJ appropriately considered inconsistencies between
Quartucci’s testimony and his own reported conduct and activities. See Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). Quartucci
reported or testified that he eats out, cooks, travels, does household chores, cares
for his minor son, plays various musical instruments and video games, drives and
uses public transportation, listens to lectures a few hours each week on
4
engineering, chemistry, and other complex sciences, shops twice a week for at least
an hour, and engages in various other activities. The ALJ correctly determined that
these activities were inconsistent with Quartucci’s testimony regarding the reasons
why his depression and anxiety would prevent him from working even a simple,
unskilled job.
Quartucci argues that the ALJ erred in assessing his RFC and in relying on a
vocational expert’s opinion that Quartucci can perform jobs that exist in the
national economy. For both assertions, however, Quartucci relies on the above
arguments that the Court has rejected.
AFFIRMED.
5