                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 14 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARLENE M. CONLEY,                               No. 11-35120

              Plaintiff - Appellant,             D.C. No. 9:10-cv-00035-JCL

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                  Jeremiah C. Lynch, Magistrate Judge, Presiding

                       Argued and Submitted March 6, 2012
                                Portland, Oregon

Before: W. FLETCHER, FISHER, and BYBEE, Circuit Judges.

       Marlene Conley appeals the decision of the district court upholding the final

determination of the Social Security Commissioner denying her claim for disability

insurance benefits and supplemental security income benefits under Titles II and

XVI of the Social Security Act. Because we conclude that the ALJ’s decision was


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
not based on legal error and was supported by substantial evidence, Bray v.

Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009), we affirm.

      Conley argues that the ALJ “erred as a matter of law in its credibility

analysis as to Conley herself.” The ALJ found that Conley suffers from systemic

lupus erythematosus and fibromyalgia, both of which could reasonably produce the

symptoms complained of, and that there was no evidence of malingering. An

adverse credibility finding must therefore be based on clear and convincing

reasons. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th

Cir. 2008) (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). In

making the credibility determination, the ALJ may consider “inconsistencies

between the claimant’s testimony and . . . her conduct, daily activities, and work

record.” Bray, 554 F.3d at 1227.

      In finding that Conley was “not entirely credible,” the ALJ pointed to

specific evidence for rejecting Conley’s subjective complaints, including that

Conley was not forthcoming about providing regular care for three of her

grandchildren, two of which are toddlers and require significant attention. The

ALJ also cited Conley’s ability to care for her personal needs, take care of her dog,

visit with her mother and friends daily, perform household chores, watch up to four

hours of movies per day, and swim on a regular basis in the summer of 2007.


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Although the ALJ’s reliance on Conley’s swimming is questionable, because he

cited to several clear and convincing reasons for finding Conley’s testimony not

entirely credible, the ALJ did not err in discounting Conley’s subjective

complaints.

      Conley next contends that the ALJ committed legal error because he failed

to properly defer to the medical specialty expertise of Dr. Van Belois, diminished

Dr. Van Belois’s contribution and expertise by dissecting the evidence, and

mischaracterized medical evidence such that it contributed to the diminution of Dr.

Van Belois’s specialty. The ALJ is responsible for resolving conflicts in the

medical record. Carmickle, 533 F.3d at 1164. In general, opinions of a treating

physician should be given substantial weight, Bray, 554 F.3d at 1228, because she

has a “greater opportunity to know and observe the patient,” Andrews v. Shalala,

53 F.3d 1035, 1041 (9th Cir. 1995) (internal quotation marks omitted). The ALJ

may reject the contradicted opinion of a treating or examining physician only by

providing “‘specific and legitimate reasons that are supported by substantial

evidence in the record.’” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir.

2006) (quoting Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)).

      The ALJ credited Dr. Van Belois’s early opinions with only “minimal to

middle weight” because the treatment had just begun, her statements were brief and


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conclusory, and the opinion was based, in part, on Conley’s own subjective

complaints, which the ALJ found to be not entirely credible. See Bray, 554 F.3d at

1228; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ

discounted Dr. Van Belois’s later statements because they conflicted directly with

Conley’s claimed daily activities and were again heavily based on Conley’s

subjective complaints. Because the ALJ cited to specific and legitimate reasons for

discounting Dr. Van Belois’s opinion, he did not commit legal error.

      Relying almost exclusively on her previously rejected claim that the ALJ

erred in not according “greater weight” to Dr. Van Belois’s opinion, Conley also

argues that the ALJ failed to consider the record as a whole and thus erred in

calculating her residual functioning capacity (“RFC”). As explained above, we

think that the ALJ properly discounted Conley’s subjective complaints and the

opinion of Dr. Van Belois. We therefore hold that the ALJ did not err in

determining that Conley’s RFC was something other than what Dr. Van Belois

suggested. Rather, because the evidence as a whole—including medical evidence,

evidence of Conley taking care of her grandchildren for several hours a day, and

other evidence of her daily activities—could lead a reasonable mind to accept the

ALJ’s conclusion that Conley had an RFC to perform at least light work, we do not

find any legal error or that the evidence was insufficient to support the ALJ’s


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determination. See 20 C.F.R. § 404.1545(a); see also Social Security Ruling

96-8p, 1996 WL 374184, at *2 (July 2, 1996).

      AFFIRMED.




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