                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 01 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TAMELA LATTA,                                    No. 11-35493

              Plaintiff - Appellant,             D.C. No. 9:10-cv-00141-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 April 11, 2012
                               Seattle, Washington

Before: HUG, D.W. NELSON, and CALLAHAN, Circuit Judges.

       Tamela Latta appeals the district court’s grant of summary judgment against

her on her claim for review of the Social Security Commissioner’s (Commissioner)

denial of disability benefits. The Administrative Law Judge (ALJ) at Latta’s

disability hearing concluded that Latta could return to her former occupation as a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sales clerk in women’s apparel and is therefore not disabled. Latta sought review

in federal district court, and the district court upheld the ALJ’s decision. Latta now

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

and we affirm.

                                           I

      Latta first argues that the ALJ’s determination that she is not disabled was

erroneous because in defining Latta’s residual functional capacity (RFC), the ALJ

(1) did not credit her subjective claims of pain and (2) relied on the opinion of a

non-examining physician instead of Latta’s treating physicians and other

healthcare providers.

      The ALJ provided clear and convincing reasons, supported by substantial

evidence, in finding that Latta’s representations as to the severity of her pain were

not credible. See Tommasetti v. Astrue, 533 F.3d 1035, 1038-40 (9th Cir. 2008).

As the ALJ noted, the physical therapist who administered Latta’s residual

functional capacity assessment found that Latta “displayed numerous pain

behaviors as well as pain reports that were not always consistent and selective.”

That same physical therapist also recorded observations of Latta walking around

and laughing shortly after she had been crying and reporting her pain at a level of

nine out of ten. The ALJ rationally interpreted that evidence, as well as the


                                           2
evidence that Latta’s condition was improving and did not require aggressive

treatment, to indicate that Latta’s claims of debilitating pain were not credible. See

id. at 1038-1039.

      We also reject Latta’s argument that the ALJ erred in declining to accept

certain opinions from her treating physicians and other healthcare providers. As

the fact-finder in disability hearings, the ALJ is responsible for resolving any

conflicts in the medical evidence on record. See Thomas v. Barnhart, 278 F.3d

947, 956 (9th Cir. 2002). Here, although Latta’s treating physician, Dr. Winkel,

concluded as late as February of 2008 that Latta was capable of returning to work,

the doctor abruptly reversed himself and opined in May of 2008 that Latta was

unable to work in any capacity. The ALJ permissibly rejected Dr. Winkel’s later

opinion on the basis that it was conclusory and relied wholly on Latta’s subjective

pain representations, which the ALJ had already found not credible. See

Tommasetti, 533 F.3d at 1041.

      Similarly, the ALJ did not err in rejecting the opinions of Latta’s other

healthcare providers on the basis that those opinions were conclusory and also

relied on Latta’s unreliable representations of pain. See id. Moreover, even

assuming the ALJ erred in failing to comment separately on the observations of

Latta’s pain from the records of her healthcare providers, any error was harmless


                                           3
because the providers’ statements did not describe any limitations beyond those

Latta had already described herself, which the ALJ validly rejected. See Molina v.

Astrue, 674 F.3d 1104, 1121-22 (9th Cir. 2012).

                                           II

      Latta’s final argument is that, even if the ALJ did not err in rejecting her

credibility or the opinions of her treating physicians, and thus correctly defined her

RFC, the ALJ did err in concluding that her RFC permitted her to return to her

former occupation as a sales clerk in women’s apparel. Latta contends that the

ALJ defined her RFC to require that any position she takes permit her periodically

to alternate between sitting and standing, and that, since the position of sales clerk

in women’s apparel does not allow for sitting, the ALJ’s definition of Latta’s RFC

precludes her from returning to work in that position.

      While we agree that a superficial reading of the ALJ’s RFC definition

supports Latta’s argument, that argument fails upon a contextual review of the

record as a whole. It is clear that the ALJ intended to adopt the RFC assessment of

Dr. Schofield, which clarified the sentence “must alternate between sitting and

standing” to mean only that Latta must “alternate posture and positions” when her

occupation requires her to sit for any extended period of time—not that Latta is

unable to stand for six hours per workday. The vocational expert at Latta’s


                                           4
disability hearing stated that Dr. Schofield’s RFC assessment permitted Latta to

return to her former work as a sales clerk, and the ALJ permissibly relied on that

testimony as substantial evidence in support of his determination that Latta is not

disabled. See Thomas, 278 F.3d at 960 (testimony of vocational expert is

substantial evidence).

      AFFIRMED.




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