NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN L. MCMAHON, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 20-35240 

D.C. No. 3:19-cv-05209-MAT 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Mary Alice Theiler, Magistrate Judge, Presiding

Submitted April 15, 2021**

San Francisco, California

Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit 

Judges.

Steven McMahon appeals the district court’s order affirming the Social 

Security Commissioner’s denial of his application for disability benefits. We have 

jurisdiction under 28 U.S.C. § 1291. We affirm. 

* 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

APR 19 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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1. McMahon contends the ALJ did not properly evaluate the opinions of 

various medical professionals. An ALJ may only reject an uncontradicted opinion 

of a treating or examining physician for “clear and convincing reasons.” Lester v. 

Chater, 81 F.3d 821, 830 (9th Cir. 1995) (quotation marks and citation omitted). 

When contradicted by another doctor, an ALJ only needs to state “specific and 

legitimate reasons that are supported by substantial evidence in the record” to 

reject the opinion. Id. at 830–31 (citation omitted).

McMahon argues that the ALJ did not give proper weight to the part-time 

sedentary work limitation opined by treating physician assistant Mortensen and 

Dr. Benitez. Even assuming Dr. Benitez agreed with Mortensen’s treatment notes 

that McMahon would “likely need part time” sedentary work “due to limitations 

with low back for sitting,” and the ALJ did not properly evaluate this evidence, any 

error would be harmless. See Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 

2006). Mortensen and Dr. Benitez co-signed a document opining the limitations 

would only last six months with available treatment. As a result, any erroneous 

rejection of the opinion that McMahon was limited to part-time work would be 

harmless as there is no evidence the impairment lasted “at least 12 months” as 

required by 20 C.F.R. § 416.909.

McMahon contends the ALJ erred in giving insufficient weight to 

Dr. Coor’s opinion that McMahon was limited in his ability to reach, push, and 
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pull. McMahon highlights Dr. Coor’s finding of “loss of the normal bulk of his

thoracic and lumbar paraspinal muscles” as consistent with that limitation. 

However, in opining on McMahon’s physical limitations, Dr. Coor did not 

reference McMahon’s paraspinal muscles—indeed Dr. Coor did not cite any

clinical findings to support the limitations that he reported. Further, the limitations 

that Dr. Coor reported are generally inconsistent with medical evidence showing 

McMahon’s cervical spine causes minimal functional limitations.

McMahon faults the ALJ for providing significant weight to Dr. Rack’s 

opinion even though it predated some of the record evidence. He does not specify 

which findings were given too much weight or what later evidence may have 

altered those findings. He also highlights several other medical opinions but does 

not argue whether these opinions were given too much or too little weight. 

McMahon’s lack of specificity precludes him from meeting his burden of showing 

harmful error in the ALJ’s evaluation. See Shinseki v. Sanders, 556 U.S. 396, 410 

(2009).

2. McMahon testified about several physical and mental health 

symptoms that allegedly preclude him from sedentary work. As the ALJ found 

that McMahon’s impairments could reasonably be expected to cause some of 

McMahon’s alleged symptoms, the ALJ needed “specific, clear and convincing 

reasons” to reject McMahon’s testimony. See Ghanim v. Colvin, 763 F.3d 1154, 
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1163 (9th Cir. 2014) (cleaned up). We conclude the ALJ gave proper reasons for 

partially rejecting McMahon’s testimony.

Record evidence demonstrates McMahon’s symptoms improved with 

treatment, as noted by the ALJ. For example, the record shows a full range of 

motion in McMahon’s knees after surgery and an improved gait. These and other 

improvements undercut the severity of symptoms outlined in McMahon’s 

testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2007).

Likewise, the ALJ properly relied on inconsistencies between McMahon’s 

testimony and the medical record. For example, McMahon testified that back 

surgery was not recommended because of his age when the medical record shows 

that surgery was not recommended based on the condition of his spine. In 

addition, he testified of general fatigue from lifting his upper body and walking 

while the medical record is full of McMahon’s statements he was not fatigued. 

McMahon testified he never left home without his cane, though the cane is 

conspicuously absent in some treatment notes.1 The ALJ properly factored in these 

inconsistencies. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

Finally, McMahon faults the ALJ’s reliance on his daily activities of 

1 Both parties agree the agency erred in claiming that McMahon testified to 

getting migraines three to four times per month, but that error is harmless where 

there are other bases to discount McMahon’s testimony. See Carmickle v. 

Comm’r, 533 F.3d 1155, 1162–63 (9th Cir. 2008).
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household chores and occasional socializing as evidence that McMahon had 

overstated the severity of his symptoms. But this evidence suggests McMahon’s 

symptoms are not as severe as he testified. Taken together, the ALJ relied on 

“specific, clear and convincing reasons” to reject McMahon’s testimony. Ghanim, 

763 F.3d at 1163 (cleaned up).

3. The ALJ properly discounted the testimony of McMahon’s girlfriend, 

Sabrina Bartlett. If an ALJ can “give reasons that are germane to each witness,” he 

need not credit lay witness testimony. Dodrill v. Shalala, 12 F.3d 915, 919 (9th 

Cir. 1993). Bartlett testified of a gradual deterioration of McMahon’s condition 

leading to increased isolation and a host of physical limitations on his movement 

and ability to perform daily tasks.

McMahon argues that the ALJ applied the incorrect legal standard for 

evaluating lay witness evidence when he stated that Bartlett’s testimony did “not 

convince the [ALJ] that the residual functional capacity” was unwarranted given 

the other record evidence. But any error in characterizing the standard is harmless 

because the ALJ provided germane reasons supported by substantial evidence to 

discount Bartlett’s testimony. See Stout, 454 F.3d at 1055.

The ALJ correctly noted Bartlett’s testimony regarding the severity of 

symptoms was generally inconsistent with the medical evidence demonstrating 

McMahon’s symptoms improved with treatment, evidence that he performed
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several household chores and shops for groceries, and his occasional social 

interactions. Inconsistencies with medical evidence and evidence of a claimant’s 

activities are germane reasons for discounting lay testimony. See Lewis v. Apfel, 

236 F.3d 503, 511–12 (9th Cir. 2001). 

4. McMahon also challenges the ALJ’s residual functional capacity 

evaluation and conclusion that McMahon could perform work as a document 

preparer, call-out operator, and final assembler. But these challenges are based on 

the failed arguments that the ALJ improperly weighed the findings of the 

physicians and McMahon and Bartlett’s testimonies. Therefore, these challenges 

also fail.

AFFIRMED.