NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARSON E. BAYNESS, 

Plaintiff-Appellant, 

 v. 

MARTIN J. O’MALLEY, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 23-35246 

D.C. No. 3:22-cv-05227-MAT 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Mary Alice Theiler, Magistrate Judge, Presiding

Submitted June 5, 2024**

Portland, Oregon

Before: RAWLINSON, FORREST, and SUNG, Circuit Judges.

Claimant Carson E. Bayness appeals from the district court’s ruling affirming 

the Commissioner of Social Security’s denial of his application for benefits. We

have jurisdiction under 28 U.S.C. § 1291. We review the district court’s order de 

* 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

JUN 11 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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novo and reverse only if the Administrative Law Judge’s (ALJ) decision was not 

supported by substantial evidence or was based on legal error. Larson v. Saul, 967 

F.3d 914, 922 (9th Cir. 2020). We affirm.

1. Evaluation of Medical Evidence. Bayness argues that the ALJ erred by

discounting the opinions of Doctors Wingate, Senske, and Sylwester. The ALJ must 

assess the persuasiveness of the medical opinions and explain how she considered 

the supportability and consistency factors. 20 C.F.R. § 416.920c(a)–(b) (effective 

March 27, 2017). As to all three physicians, the ALJ sufficiently explained her 

analysis and her conclusions are supported by substantial evidence in the record. See 

Woods v. Kijakazi, 32 F.4th 785, 791–92 (9th Cir. 2022).

The ALJ found unpersuasive Dr. Wingate’s opinion that Bayness has marked 

limitations because it is inconsistent with “contemporaneous treatment notes” and 

Bayness’s “presentation at [Dr. Wingate’s] examination” and is “largely based on 

[Bayness’s] self-reports” that are inconsistent with the longitudinal medical record.

These are valid bases for discounting a medical opinion and are based on a rational 

interpretation of the record evidence. See id. at 792–93 (affirming the ALJ’s 

rejection of a medical opinion that was inconsistent with treatment notes and 

objective findings); Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)

(discussing medical opinions that are based on self-reports).

Bayness’s argument regarding Dr. Senske fails because the ALJ is not 
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required to adopt opinions stated in vague terms that are “inadequate for 

determining” Residual Functional Capacity (RFC). Ford v. Saul, 950 F.3d 1141, 

1156 (9th Cir. 2020). Additionally, the ALJ did not err in finding that the objective 

portions of Dr. Senske’s exam were largely based on Bayness’s self-reports. See 

Ghanim, 763 F.3d at 1162.

Finally, the ALJ did not err in rejecting Dr. Sylwester’s opinion as 

unsupported by a specific diagnosis or longitudinal medical evidence supporting 

physical limitations. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).

2. Evaluation of Bayness’s Testimony. Bayness argues that the ALJ 

erroneously discounted his testimony by, among other things, failing to consider that 

his mental health symptoms wax and wane, that his limited activities are consistent 

with his testimony, and that he has not experienced sustained improvement in his 

condition. When medical evidence is inconsistent with a claimant’s testimony, the 

ALJ can reject the testimony “only by offering specific, clear, and convincing 

reasons for doing so.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (quoting 

Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). Here, the ALJ identified 

evidence that Bayness’s condition has improved since he started receiving treatment 

and that, contrary to his described limitations, he is able to leave the house almost 

daily, perform errands, and engage in group counseling. We conclude that the ALJ 

gave sufficient reasons supported by substantial evidence to discredit Bayness’s 
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subjective symptom testimony. Id. at 494–95.

3. Evaluation of Lay Evidence. Bayness also argues that the ALJ 

erroneously failed to consider the observations of agency facilitators and 

interviewers, which he contends provide further support for histestimony. Assuming 

this was error, see 20 C.F.R. § 416.929(a) (“We will consider all of your statements 

about your symptoms, such as pain, and any description your medical sources or 

nonmedical sources may provide . . . .” (emphasis added)), it was harmless. See 

Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (holding 

failure to consider lay testimony is harmless error if “a reviewing court . . . can 

confidently conclude that no reasonable ALJ, when fully crediting the testimony, 

could have reached a different disability determination”). This lay evidence consists 

of checklist forms with short narratives filled out by agency employees who had very 

limited interaction with Bayness. And the observations of these lay witnesses—that 

Bayness was nervous and had some difficulties with communication and 

coherency—are substantially similar to other evidence in the medical record that the 

ALJ properly evaluated. Under these circumstances, we cannot conclude that an ALJ 

who credited the lay evidence would reach a different disability determination. Cf.

id. at 1056.

4. RFC and Step-Five Determinations. Bayness argues that the ALJ’s

RFC determination was legally erroneous and unsupported by substantial evidence.
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Specifically, Bayness contends the ALJ failed to include that he is unable to perform 

any type of full-time competitive work on a sustained basis due to the functional 

effects of his anxiety, depression, and back pain, as described by Drs. Wingate, 

Senske, and Sylwester; Bayness; and the lay witnesses. However, as discussed 

above, we conclude that the ALJ did not err in discounting this evidence, and the 

ALJ does not err in omitting rejected evidence from her RFC determination. See

Kitchen v. Kijakazi, 82 F.4th 732, 740–42 (9th Cir. 2023). Accordingly, we also 

conclude that the ALJ did not err at Step Five by relying on her RFC determination

and the vocational expert testimony based on that determination. See id. at 742.

AFFIRMED.