NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMOS L. MCLEMORE, No. 16-35409
Plaintiff-Appellant, D.C. No. 3:15-cv-00743-BR
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted June 19, 2018**
Before: LEAVY, TROTT and SILVERMAN, Circuit Judges.
Amos McLemore appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for social security
supplemental security income under Title XVI of the Social Security Act. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin,
*
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).
763 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.
The ALJ identified specific, clear and convincing reasons that are supported
by substantial evidence for discounting McLemore’s testimony regarding the
debilitating effects of his symptoms: (1) he had a poor work history; (2) the
objective medical evidence of physical impairments contravenes the severe degree
of physical impairments alleged; and (3) there were inconsistencies between his
subjective complaints and activities of daily living. See Thomas v. Barnhart, 278
F.3d 947, 959 (9th Cir. 2002) (affirming an ALJ’s determination the claimant’s
little propensity to work “negatively affected her credibility regarding her inability
to work”); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (holding that an
ALJ can consider a lack of supporting medical evidence when assessing
credibility); Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (“Engaging in
daily activities that are incompatible with the severity of symptoms alleged can
support an adverse credibility determination.”). The ALJ erred in finding that
McLemore’s work on a landscaping crew while in prison “contravenes the severe
degree of physical impairments alleged” because McLemore worked on the crew
before his back injury and surgery in 2010. However, this error was harmless
because the ALJ gave other specific, clear and convincing reasons for finding
McLemore not credible. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
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The ALJ gave specific and legitimate reasons for giving only “limited
weight” to Dr. Dean’s opinion because (1) she did not review any records and
relied on McLemore’s less than credible self-report; and (2) her opinion that
McLemore cannot sustain employment without accommodations was inconsistent
with McLemore’s activities of daily living. See Reddick v. Chater, 157 F.3d 715,
727 (9th Cir. 1998) (holding that the opinion of a consulting examiner based on a
one-time examination of the claimant with no review of the medical records is of
little value); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th
Cir. 1999) (upholding ALJ’s discounting results of psychological testing conducted
by examining psychologist in part because claimant was “not entirely credible”);
cf. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (holding the rule
allowing an ALJ to reject opinions based on self-reports does not apply in the same
manner to opinions regarding mental illness, which “will always depend in part on
the patient’s self-report”); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)
(holding that an ALJ can reject statements that conflict with claimant’s ability to
perform various activities).
The ALJ did not err in failing to consider whether McLemore met or equaled
the criteria for Listing 12.05C, which pertains to intellectual disability. McLemore
failed to show a full-scale IQ between 60 and 70. Although Dr. Dean assessed a
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full-scale IQ of 63, Dr. Dean’s own report cast doubt on the validity of this IQ
score. Also, the record does not indicate that McLemore exhibited intellectual
disability with an onset before age 22. Accordingly, the ALJ did not commit
reversible error by failing to consider whether McLemore met the requirements of
Listing 12.05C, and McLemore does not meet his burden of presenting evidence
establishing an impairment that met or equaled the criteria for Listing 12.05C. See
Burch, 400 F.3d at 683.
AFFIRMED.
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