Tommasetti v. Astrue

533 F.3d 1035, 2008 WL 2762439
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 17, 2008
Docket06-55999
StatusPublished
Cited by3,899 cases

This text of 533 F.3d 1035 (Tommasetti v. Astrue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tommasetti v. Astrue, 533 F.3d 1035, 2008 WL 2762439 (9th Cir. 2008).

Opinion

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, *1037 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 Tom-masetti’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 Tom-masetti 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 *1038 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. Naehen-berg stated. He did not, however, explicitly endorse Dr. Nachenberg’s assessment.

The VE testified regarding Tommaset-ti’s ability to perform his prior work and other work in the national economy and local economy. The VE noted that Tom-masetti 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).

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