                           NOT FOR PUBLICATION                           FILED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).




                                          2                                     16-35409
      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



                                          3                                     16-35409
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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