                                                                            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                           NOT FOR PUBLICATION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.
