FILED
NOT FOR PUBLICATION
FEB 26 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICKOLAS W. MCMAHON, No. 16-17294
Plaintiff-Appellant, D.C. No.
1:15-cv-00043-SMS
v.
NANCY A. BERRYHILL, Acting MEMORANDUM*
Commissioner of the Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sandra Snyder, Magistrate Judge, Presiding
Argued and Submitted February 13, 2018
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and STATON,** District Judge.
Nickolas McMahon appeals the District Court’s judgment affirming the
Commissioner of Social Security’s denial of his applications for Social Security
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.
Page 2 of 3
Disability Insurance and Supplemental Security Income benefits under the Social
Security Act. For the reasons stated below, we affirm.
We review de novo the findings of the district court, and “may set aside a
denial of benefits only if it is not supported by substantial evidence or is based on
legal error.” Robbins v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
Substantial evidence “means ‘more than a scintilla,’ but ‘less than a
preponderance’” and is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th
Cir. 1996) (citations omitted). A legal error may be harmless “when it [is] clear
from the record that an ALJ’s error was ‘inconsequential to the ultimate
nondisability determination.’” Robbins, 466 F.3d at 885 (quoting Stout v. Comm’r,
454 F.3d 1050, 1055-56 (9th Cir. 2006)).
The Administrative Law Judge (ALJ) erred in providing only a
“boilerplate” analysis of whether McMahon’s impairments met Listing 1.04 of 20
C.F.R. part 404, subpart P, appendix 1. “An ALJ must evaluate the relevant
evidence before concluding that a claimant’s impairments do not meet or equal a
listed impairment. A boilerplate finding is insufficient to support a conclusion that
a claimant’s impairment does not do so.” Lewis v. Apfel, 236 F.3d 503, 512 (9th
Cir. 2001) (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)).
Page 3 of 3
However, the error was harmless: McMahon did not present any evidence that he
met a required element of the listing, “motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss.” 20 C.F.R.
part 404, subpart P, appendix 1. Accordingly, the ALJ’s error did not affect the
ultimate disability determination.
The ALJ cited specific and legitimate reasons, supported by substantial
evidence, for rejecting the opinions of McMahon’s treating physician, Brian
Karvelas, M.D., and treating pain management specialist, Ray Hsieh, M.D., as to
McMahon’s sitting and standing restrictions. As to Dr. Karvelas’s opinion, the
ALJ concluded that the opinions of Dr. Gleason and Dr. Bullard were more
consistent with the record as a whole, McMahon had reported significant benefit
from treatment, and Dr. Karvelas’s recommendations of light duty pursuant to the
workers’ compensation scheme were inconsistent with his opinions as to
McMahon’s sitting and standing restrictions. As to Dr. Hsieh, the ALJ cited the
inconsistency of Dr. Hsieh’s opinions with contemporaneous treatment notes and
with the record as a whole. Moreover, we can ascertain from the opinion that the
ALJ considered the factors set forth in 20 C.F.R. section 404.1527(c)(2)-(6), which
guide the evaluation of a treating physician’s opinion.
AFFIRMED.