Steven L. McMahon v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION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.

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