NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL EVAN KELLEY,

Plaintiff

- Appellant,

v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant

- Appellee. No. 22

- 16775

D.C. No. 3:21

- cv

- 08016

- SMB

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding

Submitted October 20, 2023 * * Phoenix, Arizona

Before: IKUTA, BADE, and BRESS, Circuit Judges.

Michael Evan Kelley appeals the district court’s order affirming the

Commissioner’s final decision, as set forth in the Administra tive Law Judge’s

(“ALJ”) decision and affirmed by the Appeals Council, denying Kelley’s

* 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). 

# FILED

OCT 24 2023

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

application for disability benefits under Title II of the Social Security Act,

42 U.S.C. § 423. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo the dis trict court’s order affirming the agency ’s denial of Social Security

disability benefits. Miskey v. Kijakazi , 33 F.4th 565, 570 (9th Cir. 2022). We must

“ affirm the ALJ ’ s findings of fact if they are supported by substantial evidence and

if the ALJ ’ s decision was free of legal error.” Shaibi v. Berryhill , 883 F.3d 1102,

1108 (9th Cir. 2017) (citations omitted)

. Because the ALJ’s decision satisfies this

standard, we affirm.

1. Kelley argues that the ALJ erred at step two by finding that his mental

hea lth impairments were not severe. Even if the ALJ erred at step two, it was

harmless. S tep two is “ merely a threshold determination meant to screen out weak

claims. ” Buck v. Berryhill , 869 F.3d 1040, 1048 (9th Cir. 2017). If a claimant is

found to have a single severe impairment at step two, the ALJ proceeds to step

three. McCartey v. Massanari , 298 F.3d 1072, 107 4 n.6 (9th Cir. 2002)

. A n

additional severe impairment has no impact on an ALJ’s residual functional

capacit y (“RFC”) analysis because the ALJ is required to consider all t he

claimant’s impairments, regardless of severity. Buck , 869 F.3d at 1049. Because

the ALJ determined that Kelley had the severe impairments of degenerative disc

disease with nerve root impingement and gout at step two , Kelley was not3

prejudiced by the ALJ’s finding that his mental health impairments were non

severe

. See i d. Therefore, even if the ALJ erred, it was harmless error.

2. The ALJ gave clear and convincing reasons supported by substantial

evidence for discounting Kelley’s symptom testimony. See Smith v. Kijakazi , 14

F.4th 1108, 1111 (9th Cir. 2021)

. The ALJ explained how the evidence conflicted

with Kelley’s testimony on the intensity, persistence, and limiting ef fects of his

symptoms. This evidence included Kelley’s substantial daily activities, prior

inconsistent statements, and objective medical evidence that showed unremarkable

and normal findings. See Smartt v. Kijakazi , 53 F.4th 489, 498 (9th Cir. 2022)

(“W hen objective medical evidence in the record is inconsistent with the

claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such

testimony.”) ; see also Rounds v. Comm’r Soc. Sec. Admin. , 807 F.3d 996, 1006

(9th Cir. 2015) (“To assess a claimant’s credibility, the ALJ may consider . . .

‘ordinary techniques of credibility evaluation,’ ‘ inadequately explained failure to

seek treatment or to follow a prescribed course of treatment,’ and ‘th e claimant’s

daily activities.’” (citation omitted)). Accordingly, the ALJ supported h is decision

to discount Kelley’s subjective testimony with specific, clear
, and convincing

reasons.4

3. The ALJ’s RFC analysis articulates why he found medical opinions

p ersuasive and why he rejected certain evidence, and these conclusions were
supported by substantial evidence.

Kelley first argues that the ALJ failed to adequately consider the medical

opinion s of state agency psychological consultants who assigned him a more

limited RFC. This argument is without merit. The ALJ found that these opinions

failed to consider a substantial amount of subsequently developed evidence and

that the se opinions were inco nsistent with other evidence, such as Kelley’s

numerous normal mental status examinations and frequent denials of limited

functions. This analysis , considering supportability and consistency, was sufficient

under the regulations

. See Woods v. Kijakazi , 3 2 F.4th 785, 792 (9th Cir. 2022)

.
The ALJ also found persuasive two sta t e agency medical consultants who

opined that Kelley had a medium RFC. This conclusion was also supported by

substantial evidence. The ALJ reasonably found that Kelley’s substantial activities

and normal consultative examination were consistent with the se medical opinions

and noted that both doctors considered more (and more recent) objective medical

evidence than that considered by state agency medical cons ultants who assessed a

more restrictive RFC. See Garrison v. Colvin , 759 F.3d 995, 1012 (9th Cir. 2014)

(“An ALJ can satisfy the substantial evidence requirement by setting out a detailed

and thorough summary of the facts and conflicting clinical evidence , stating his5

interpretation thereof, and making findings.” (internal quotation marks and citation

omitted)).

Kelley also argues that the ALJ failed to discuss probative evidence in his

RFC analysis

. The ALJ did not err. While Kelley identifies certain i mpairments

the ALJ did not expressly mention in his RFC analysis
, he fails to explain how

these impairments “correspond to limitations on [his] ability to perform basic work

activities.” See Bray v. Comm ’ r of Soc. Sec. Admin. , 554 F.3d 1219, 122 9 (9th Cir.

2009). As to other evidence identified by Kelley, such as his record of pain

management, the ALJ provided a sufficient explanation for rejecting i t

. See

Kilpatrick v. Kijakazi , 35 F.4th 1187, 1193 (9th Cir. 2022) ( An ALJ “must explain

why sign ificant probative evidence has been rejected.” ( citation omitted)).

4. Finally, Kelley argues that an award of SSI benefits in a subsequent

application, finding Kelley disabled with an onset date of March 6, 2020, is

inconsistent with the ALJ’s finding that the claimant was not disabled as of

December 31, 2019, as to his application for Disability Insuranc e Benefits

. 1 There

is no inconsistency. The date that Kelley was found disabled in the subsequent

application was three months after the date the ALJ found Kelley not disabled.

Kelley’s subsequent application included new evidence that was not relevant to the

1 Kelley ’s motion to take judicial notice of an award of SSI benefits and the Commissioner’s motion to take judicial notice of the agen cy’s disability determination explanation for that award are both granted.6

period of disability considered in the prior application, which explains the different

findings of disability. Therefore, remand is not warranted. See Booz v. Sec’y of

Health & Hum. Servs. , 734 F.2d 1378, 1380

– 81 (9th Cir. 1984).

AFFIRMED.