                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 20 2011

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




                            FOR THE NINTH CIRCUIT



REBECCA BUCKNER-LARKIN,                          No. 09-17751

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01500-JAT

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

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                      Argued and Submitted August 29, 2011
                            San Francisco, California

Before: BERZON and BYBEE, Circuit Judges, and GRAHAM, Senior District
Judge.**

       Rebecca Buckner-Larkin appeals the decision of the district court affirming

the final determination of the Social Security Commissioner denying her claim for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James L. Graham, Senior District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
disability benefits. Buckner-Larkin argues that the Administrative Law Judge

(“ALJ”) committed four legal errors in determining that she was not disabled

within the meaning of 42 U.S.C. § 423(d) during the relevant period. Because we

find that the ALJ’s decision was 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.

      Buckner-Larkin first argues that her residual functional capacity (“RFC”)

was incorrectly determined because the ALJ did not set forth a function-by-

function assessment or account for pain. Yet, in accordance with Social Security

Ruling 96-8p, the ALJ defined her RFC as “sedentary,” SSR 96-8p, 1996 WL

374184 (July 2, 1996), which includes well-defined function-by-function

parameters. See 20 C.F.R. § 404.1567(a); SSR 96-9p, 1996 WL 374185 (July 2,

1996). Her RFC also included a sit-stand option, which is most reasonably

interpreted as sitting or standing “at-will,” based on the record. Finally, the ALJ

accounted for pain, noting that Buckner-Larkin’s concentration, persistence, and

pace would be limited because of pain and pain medication.

      Buckner-Larkin next contends that the ALJ improperly discounted the

opinion of her treating physician, Dr. Maestas. If a treating physician’s opinion is

contradicted by other evidence, the ALJ must provide “specific and legitimate


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reasons supported by substantial evidence in the record” for rejecting the opinion.

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation marks

omitted). Additionally, if the ALJ determines that the subjective complaints of the

claimant are not credible, this is a sufficient reason for discounting a physician’s

opinion that is based on these complaints. Bray, 554 F.3d at 1228.

      In discounting treating physician Dr. Maestas’s opinion, the ALJ found that

the opinion contained internal inconsistencies and was inconsistent with other

medical evidence and opinions, including the opinions of other treating and

examining physicians; that Dr. Maestas appeared to be more of an advocate than an

objective examiner; and that the opinion was heavily based upon Buckner-Larkin’s

subjective complaints, without sufficient objective supporting information. These

are specific and legitimate reasons for discounting Dr. Maestas’s opinion, and are

supported by the record.

      Next, Buckner-Larkin argues that the ALJ improperly discounted her own

subjective complaints. If the ALJ determines that the claimant’s subjective

complaints are unreliable, the ALJ must make specific findings backing up this

credibility determination. Id. at 1226–27. When objective medical evidence

establishes that the claimant suffers from an impairment that could reasonably

produce the symptoms complained of, “an adverse credibility finding must be


                                           3
based on clear and convincing reasons,” unless there is affirmative evidence of

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

Cir. 2008) (internal quotation marks omitted). In making the credibility

determination, the ALJ may consider inconsistencies between the claimant’s

testimony and her conduct, daily activities, and work record. See Bray, 554 F.3d at

1227. The ALJ may also consider the course of treatment to determine whether

allegations of debilitating pain are credible. See Carmickle, 533 F.3d at 1162.

      The ALJ discounted to some degree Buckner-Larkin’s subjective complaints

because of inconsistencies between her complaints and medical evidence, her daily

activities, and the success of conservative treatment. Therefore, the ALJ pointed to

clear, specific, and cogent reasons for limiting his reliance on Buckner-Larkin’s

subjective complaints.

      Finally, Buckner-Larkin contends that the ALJ improperly considered

vocational evidence because it conflicted with the Dictionary of Occupational

Titles and the conflict was not identified or resolved. An ALJ must “[i]dentify and

obtain a reasonable explanation for any conflicts between occupational evidence

provided by [vocational experts] or [vocational specialists] and information in the

Dictionary of Occupational Titles” and explain in the decision how any conflict




                                          4
was resolved. SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000); see also Massachi v.

Astrue, 486 F.3d 1149, 1152–53 (9th Cir. 2007).

      The vocational expert in this case found that the recommended jobs would

allow for an at-will sit-stand option. The vocational expert noted that although the

DOT does not discuss a sit-stand option, his determination was based on his own

labor market surveys, experience, and research. Therefore, the conflict between

the DOT and the vocational expert was addressed and explained by the vocational

expert, and the ALJ addressed this in the decision.

      In conclusion, we do not find any legal error or that the evidence was

insufficient to support the ALJ’s determination. Bray, 554 F.3d at 1222.

      AFFIRMED.




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