NOT FOR PUBLICATION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 Administrative 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 APPEALS
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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 district 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 

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

harmless. Step 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, 1074 n.6 (9th Cir. 2002). An 

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

capacity (“RFC”) analysis because the ALJ is required to consider all the 

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 not
3 

prejudiced by the ALJ’s finding that his mental health impairments were nonsevere. See id. 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 effects 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) 

(“When 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 ‘the claimant’s 

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

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

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

persuasive 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 

opinions 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 these opinions were inconsistent 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, 32 F.4th 785, 792 (9th Cir. 2022).

The ALJ also found persuasive two state 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 these medical opinions

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

evidence than that considered by state agency medical consultants 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 his 
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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 impairments

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, 1229 (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 it. See 

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

why significant 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 Insurance 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 agency’s disability 

determination explanation for that award are both granted. 
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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.