Rebecca Buckner-Larkin v. Michael Astrue

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NOT FOR PUBLICATION SEP 20 2011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
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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
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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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