Tommasetti v. Astrue

Decision Date17 July 2008
Docket NumberNo. 06-55999.,06-55999.
Citation533 F.3d 1035
PartiesAnthony TOMMASETTI, Plaintiff-Appellant, v. Michael J. ASTRUE,<SMALL><SUP>*</SUP></SMALL> Commissioner of Social Security, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Young Cho, Esq., Law Offices of Lawrence D. Rohlfing Attorneys At Law, for plaintiff-appellant Anthony Tommasetti.

Peter D. Keisler, Assistant Attorney General, George S. Cardona, Acting United States Attorney, Lucille Gonzales Meis, Regional Chief Counsel, Region IX, and Geralyn A. Gulseth (Argued), Special Assistant U.S. Attorney, for defendant-appellee Michael J. Astrue, Commissioner of Social Security.

Appeal from the United States District Court for the Central District of California; Patrick J. Walsh, Magistrate Judge, Presiding. D.C. No. CV-04-09812-PJW.

Before: STEPHEN S. TROTT, RICHARD R. CLIFTON, and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Anthony Tommasetti ("Tommasetti") filed an application for Social Security benefits claiming that he was unable to work because of lower back pain and diabetes mellitus. After an initial denial of that application, and following what the district court characterized as an "administrative odyssey," the Social Security Appeals Council remanded Tommasetti's claim to a new Administrative Law Judge ("ALJ") to conduct a de novo hearing. At that hearing, the ALJ took testimony from a medical expert, a vocational expert ("VE"), and Tommasetti. After largely rejecting the opinion of one of Tommasetti's treating physicians and finding Tommasetti's testimony not credible, the ALJ concluded based almost entirely on the VE's testimony, that Tommasetti could perform his past work. Alternatively, the ALJ found that Tommasetti could perform other work in the national economy and local economy. The Appeals Council declined jurisdiction over Tommasetti's appeal, and the district court affirmed the ALJ's decision as supported by substantial evidence.

We hold that the ALJ provided "clear and convincing" reasons for rejecting Tommasetti's testimony as not credible. See Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir.1996). We further conclude that the ALJ provided "specific and legitimate" reasons based on substantial evidence for her partial rejection of the treating physician's opinion. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). Finally, we hold that although the ALJ erred in finding that Tommasetti could perform past work, see Johnson v. Shalala, 60 F.3d 1428, 1434-35 (9th Cir.1995), this error was harmless because the ALJ properly decided that Tommasetti could perform other work in the economy. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.2006). Accordingly, we affirm the district court's decision.

I. Background
A. Tommasetti's Relevant Personal and Medical History

Tommasetti was 53 years old on the alleged date of onset of his medical conditions at issue here, and he was 59 years old when his disability insurance expired in December 1999. Tommasetti attended college in Italy, has training in electronics, and previously worked as an electronics technician and TV repair person. He was involved in a car accident in April 1994 and was in pain until October 1994. Later that year he fell off a ladder while working. He was involved in subsequent car accidents in 1999 and 2000.

While Tommasetti saw several physicians, at issue on appeal is Dr. Andrea Nachenberg's reports based on her intermittent treatment of Tommasetti.1 Dr. Nachenberg first saw Tommasetti in March 1995, at which time she noted his claims of back pain and inability to stay in one position for more than ten minutes. Upon conducting a physical exam she noted "no evidence of weakness" and "minimal tenderness" on palpation. She diagnosed a "probable lumbosacral strain superimposed on osteoarthritis of the lumbar spine." She saw him again in July 1996 for right shoulder and right knee pain, and in October 1996 for lower back pain. An x-ray of his back revealed spurring and narrowing of the L4-5 and L5-S1 interspaces. Tommasetti again saw Dr. Nachenberg in March 1997 and November 1997 about lower back pain. In December 1997, Dr. Nachenberg wrote a letter that summarized Tommasetti's medical history and concluded that she did "not expect him to recover significantly at this time." Dr. Nachenberg next saw Tommasetti in September 1998 and completed a "Musculoskeletal System Residual Functional Capacity Questionnaire" ("Questionnaire"). She stated that Tommasetti could sit continuously for ten minutes, and for up to four hours in an eight-hour workday; stand continuously for thirty minutes, and for up to two hours in an eight-hour workday; required use of a lumbosacral corset; and could at most occasionally lift ten pounds.

B. Hearing Testimony

Tommasetti testified at the hearing before the ALJ regarding his lower back pain and diabetes. He testified that he could not stand, walk, climb ladders, or work; but that he could have a job where he was on his feet for no more than two hours a day, without ladder-climbing. He claimed that at the time in question he could lift at most a few pounds. He also stated that he stopped taking prescribed medicine in 1995 or 1996 due to dizziness, and he could not recall if a doctor had prescribed the walking cane he intermittently used. He further testified that he had made no attempts to work and that he supported himself with $97,000 in savings. Contrary to previous representations, Tommasetti testified that diabetes was not a disabling problem and that medication properly controlled it.

At the hearing, the ALJ took testimony from Dr. Wiseman, an agency medical expert who testified based on his review of Tommasetti's medical records. The ALJ found Dr. Wiseman's testimony to be "somewhat equivocal." Although Dr. Wiseman opined that Tommasetti had elected to limit himself based on self-chosen limitations, he refused to definitively assess Tommasetti's condition. Instead, he merely "accepted" what Dr. Nachenberg stated. He did not, however, explicitly endorse Dr. Nachenberg's assessment.

The VE testified regarding Tommasetti's ability to perform his prior work and other work in the national economy and local economy. The VE noted that Tommasetti previously worked in electronics assembly and TV repair. The VE responded to hypothetical questions based on the following residual functioning capacity: capable of lifting up to ten pounds, standing or walking for six hours in an eight-hour workday (in two-hour increments), and sitting for six hours in an eight-hour workday. Regarding prior work as an electronics assembler, the VE opined that Tommasetti could not perform that work as he had previously performed it, but concluded without much elaboration that he could perform it as it is "typically performed." The VE also testified that Tommasetti could perform work in the national economy as a semiconductor assembler, for which there were 100,000 jobs nationally and 9,000 jobs regionally.

II. Standards of Review

We review the district court's order affirming the ALJ's denial of social security benefits de novo, Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005), and will disturb the denial of benefits only if the decision "contains legal error or is not supported by substantial evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007) (citation omitted). Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Burch, 400 F.3d at 679). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir.2003) (citation omitted). The ALJ's findings will be upheld "if supported by inferences reasonably drawn from the record...." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004). The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation. Burch, 400 F.3d at 679; Batson, 359 F.3d at 1193. Finally, the court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that "the ALJ's error was `inconsequential to the ultimate nondisability determination.'" Robbins, 466 F.3d at 885 (quoting Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)).

III. Discussion

The ALJ used the required five-step sequential framework to determine whether Tommasetti was disabled. See 20 C.F.R. § 404.1520; see also Burch, 400 F.3d at 679. At step one, the ALJ found that Tommasetti had not engaged in substantial gainful activity during the relevant period. At step two, the ALJ concluded that Tommasetti "satisfied the threshold or de minimus step of having a severe impairment" by reason of his lumbosacral condition and diabetes mellitus. At step three, the ALJ found that Tommasetti's back condition and diabetes did not meet or equal one of the listed impairments in the regulations. At step four, based on the residual functional capacity determination and the VE's testimony, the ALJ concluded that Tommasetti was able to perform past relevant work as an electronics assembler. However, acknowledging "confusion in the analysis of past relevant work" and her hesitation "to play expert," the ALJ made an alternative step five finding that, assuming Tommasetti could not perform past work, he could still perform other work in the national or local economy as a semiconductor assembler.

A. Adverse Credibility Determination

Tommasetti argues that the ALJ's adverse credibility finding is not supported by the record. In order to find Tommasetti's testimony regarding the severity of his pain and impairments unreliable, the ALJ was required to make "a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d...

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