Tommasetti v. Barnhart

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2008
• Docket: 06-55999
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY TOMMASETTI,  Plaintiff-Appellant, No. 06-55999 v.  D.C. No. CV-04-09812-PJW MICHAEL J. ASTRUE,* Commissioner of Social Security, OPINION Defendant-Appellee.  Appeal from the United States District Court for the Central District of California Patrick J. Walsh, Magistrate Judge, Presiding

Argued and Submitted February 15, 2008—Pasadena, California

Filed July 17, 2008

Before: Stephen S. Trott, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

*Michael J. Astrue is substituted for his predecessor Jo Anne Barnhart as Commissioner of the Social Security Administration. Fed. R. App. P. 43(c)(2).

8827 8830 TOMMASETTI v. ASTRUE

COUNSEL

Young Cho, Esq., Law Offices of Lawrence D. Rohlfing Attorneys At Law, for plaintiff-appellant Anthony Tomma- setti. TOMMASETTI v. ASTRUE 8831 Peter D. Keisler, Assistant Attorney General, George S. Car- dona, 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.

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 Tom- masetti. After largely rejecting the opinion of one of Tomma- setti’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 econ- omy. The Appeals Council declined jurisdiction over Tomma- setti’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” rea- sons 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 legiti- mate” 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 8832 TOMMASETTI v. ASTRUE 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 dis- trict 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 electron- ics, 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 subse- quent car accidents in 1999 and 2000.

While Tommasetti saw several physicians, at issue on appeal is Dr. Andrea Nachenberg’s reports based on her inter- mittent 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 inter- spaces. Tommasetti again saw Dr. Nachenberg in March 1997 and November 1997 about lower back pain. In December 1 Dr. Nachenberg did not testify at the administrative hearing. TOMMASETTI v. ASTRUE 8833 1997, Dr. Nachenberg wrote a letter that summarized Tomma- setti’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 Ques- tionnaire” (“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 occa- sionally lift ten pounds.

B. Hearing Testimony

Tommasetti testified at the hearing before the ALJ regard- ing 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. Wise- man’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. 8834 TOMMASETTI v. ASTRUE 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 electron- ics assembler, the VE opined that Tommasetti could not per- form 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 Tom- masetti 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 evi- dence 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 omit- ted). 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 interpreta- tion. Burch, 400 F.3d at 679; Batson, 359 F.3d at 1193. Finally, the court will not reverse an ALJ’s decision for harm- less error, which exists when it is clear from the record that TOMMASETTI v. ASTRUE 8835 “the ALJ’s error was ‘inconsequential to the ultimate nondisa- bility 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 regula- tions. 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 econ- omy as a semiconductor assembler.

A. Adverse Credibility Determination

Tommasetti argues that the ALJ’s adverse credibility find- ing is not supported by the record. In order to find Tommaset- ti’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 947, 958 (9th Cir. 2002). The ALJ conducts a two-step analysis to assess subjective testimony where, under step one, 8836 TOMMASETTI v. ASTRUE the claimant “must produce objective medical evidence of an underlying impairment” or impairments that could reasonably be expected to produce some degree of symptom. Smolen, 80 F.3d at 1281-82. If the claimant meets this threshold and there is no affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Id. at 1281, 1283-84. The ALJ may consider many factors in weighing a claimant’s credibility, including “(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claim- ant that appears less than candid; (2) unexplained or inade- quately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities.” Id. at 1284; see Orn, 495 F.3d at 637-39. If the ALJ’s finding is supported by substantial evidence, the court “may not engage in second-guessing.” Thomas, 278 F.3d at 959.

[1] Here, the ALJ gave Tommasetti “the benefit of the doubt” that he had a verifiable impairment and, therefore, the ALJ was required to provide clear and convincing reasons in support of her adverse credibility finding. The ALJ provided several permissible reasons. First, she inferred that Tomma- setti’s pain was not as all-disabling as he reported in light of the fact that he did not seek an aggressive treatment program and did not seek an alternative or more-tailored treatment pro- gram after he stopped taking an effective medication due to mild side effects. This is a permissible inference. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (stating that “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding severity of an impairment”); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting subjective pain complaints where petitioner’s “claim that she experienced pain approaching the highest level imaginable was inconsistent with the ‘minimal, conser- TOMMASETTI v. ASTRUE 8837 vative treatment’ that she received”).2 The record reflects that Tommasetti responded favorably to conservative treatment including physical therapy and the use of anti-inflammatory medication, a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset. Such a response to conservative treatment undermines Tommasetti’s reports regarding the dis- abling nature of his pain.

[2] Second, the ALJ cited that Tommasetti was a “vague witness” with respect to the alleged period of disability and pain symptoms. The ALJ may rely on ordinary techniques of credibility evaluation. Smolen, 80 F.3d at 1284. The record supports the ALJ’s determinations that on questioning Tom- masetti “was not clear or certain insofar as his self-assessed work capabilities,” and that he was not “a precise judge of his own capacities.” She further commented that Tommasetti had made no attempts to perform sedentary work and had pro- vided only a vague explanation as to why: “Because I cooked. I would feel good.” The ALJ also noted that Tommasetti could not recall whether the cane he occasionally used was prescribed by a doctor.

[3] Third, the ALJ pointed to Tommasetti’s testimony that his severe diabetes was not a “disabling problem,” was con- trolled by medication, and was not the reason he stopped working. This testimony undermines Tommasetti’s prior claims that his diabetes was among his disabling conditions. See Smolen, 80 F.3d at 1284. 2 Tommasetti testified that his doctors suggested back surgery, but that he did not want to risk the procedure. Although not expressly relied on by the ALJ, the district court contrasted Tommasetti’s reluctance to undergo back surgery to possibly end his debilitating pain with his willingness to risk an invasive elective surgery that would correct a largely cosmetic uro- logical condition. Because the ALJ did not rely on this reason in support of her credibility determination, we may not rely upon it here. See Con- nett, 340 F.3d at 874 (“We are constrained to review the reasons the ALJ asserts.”). 8838 TOMMASETTI v. ASTRUE [4] Fourth, the ALJ stated that regarding the period in ques- tion Tommasetti “may not have been motivated to work due to his then large financial reserve.” Although some might not consider $97,000 to be a large financial reserve, we cannot say that the ALJ’s inference regarding Tommasetti’s motiva- tion to work based on this savings was unreasonable. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (stat- ing that in reaching findings the ALJ “is entitled to draw inferences logically flowing from the evidence”).

[5] Finally, the ALJ doubted Tommasetti’s testimony about the extent of his pain and limitations based on his ability to travel to Venezuela for an extended time to care for an ailing sister. The ALJ could properly infer from this fact that Tom- masetti was not as physically limited as he purported to be. Id.3

[6] The ALJ’s reasons for discounting Tommasetti’s testi- mony are supported by substantial evidence in the record. Accordingly, we will not disturb the ALJ’s adverse credibility finding.

B. Rejection of Dr. Nachenberg’s Opinion

[7] Tommasetti next argues that the ALJ improperly dis- counted the opinion of his treating physician, Dr. Andrea Nachenberg, regarding Tommasetti’s physical limitations. Dr. Nachenberg completed the Questionnaire, in which she opined that Tommasetti could sit continuously for ten min- utes, sit for four hours in an eight-hour workday, stand contin- uously for thirty minutes, stand/walk for two hours in an eight-hour workday, required an ability to sit and stand at will, needed unscheduled breaks, and could at most occasion- ally lift ten pounds. The ALJ rejected Dr. Nachenberg’s opin- ion only to the limited extent that it ruled out Tommasetti’s “capacity for sedentary work” during the period in question. 3 Although Tommasetti raises the fact that he had to see a physician for exacerbation of his back pain while in Venezuela, the physician only con- sidered Tommasetti “unable to do strong physical work.” TOMMASETTI v. ASTRUE 8839 The ALJ must consider all medical opinion evidence. 20 C.F.R. § 404.1527(b). Although the ALJ is not bound by an expert medical opinion on the ultimate question of disability, she must provide “specific and legitimate” reasons for reject- ing the opinion of a treating physician. Lester, 81 F.3d at 830- 31. “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted).

[8] The ALJ complied with Magallanes and provided spe- cific and legitimate reasons for rejecting Dr. Nachenberg’s opinion that are supported by the entire record. The ALJ stated that Dr. Nachenberg’s assessment was essentially a “re- hashing of claimant’s own statements,” and was therefore undermined by the ALJ’s finding that Tommasetti was not credible. An ALJ may reject a treating physician’s opinion if it is based “to a large extent” on a claimant’s self-reports that have been properly discounted as incredible. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). A review of Dr. Nachenberg’s records reveals that they largely reflect Tommasetti’s reports of pain, with little independent analysis or diagnosis. Additionally, Dr. Wiseman, the consult- ing medical expert, testified that Dr. Nachenberg’s Question- naire primarily reflected Tommasetti’s self-assessment and subjective willingness to work. Thus, the ALJ’s adverse credi- bility determination supports the limited rejection of Dr. Nac- henberg’s opinion because it was primarily based on Tommasetti’s subjective comments concerning his condition.

[9] Further, after discussing Tommasetti’s medical history and treatments in detail, the ALJ found that Dr. Nachenberg’s Questionnaire responses were inconsistent with the medical records. For example, the ALJ stated that the ultimate conclu- sions from Dr. Nachenberg’s Questionnaire regarding the extent of Tommasetti’s ability to stand and sit and his need 8840 TOMMASETTI v. ASTRUE for breaks “did not mesh with her objective data or history.” Indeed, Dr. Nachenberg’s medical records do not provide sup- port for the limitations set out in the Questionnaire. The incongruity between Dr. Nachenberg’s Questionnaire responses and her medical records provides an additional spe- cific and legitimate reason for rejecting Dr. Nachenberg’s opinion of Tommasetti’s limitations.

[10] Tommasetti contends that Dr. Wiseman’s “deferral” to Dr. Nachenberg’s assessment weighs against the ALJ’s rejec- tion of Dr. Nachenberg’s opinion. Although Dr. Wiseman “accepted” Dr. Nachenberg’s opinion, Dr. Wiseman simulta- neously concluded that Dr. Nachenberg’s opinion was based on Tommasetti’s self-reporting and expressed doubts as to Tommasetti’s limitations. He also refused to provide a defi- nite opinion of Tommasetti’s condition or limitations. Dr. Wiseman’s testimony, although equivocal, did not amount to a concurrence in Dr. Nachenberg’s opinion but only indicated that he accepted her opinion because she was a qualified phy- sician. In any event, the ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (“The ALJ is responsible for determining credibility, resolv- ing conflicts in medical testimony, and for resolving ambigui- ties.”) (citing Magallanes, 881 F.2d at 750). On this record, the ALJ reasonably rejected Dr. Nachenberg’s opinion to the extent that it precluded Tommasetti from performing seden- tary work.

C. Tommasetti’s Ability to Perform Past Work and Other Work

[11] Tommasetti further argues that the ALJ committed error at step four by finding that he could have returned to past work as an electronics assembler. The ALJ determined that Tommasetti’s physical impairment limited him to “seden- tary work,” with a maximum lifting capacity of ten pounds. At step four, the ALJ and VE agreed that, based on the elec- TOMMASETTI v. ASTRUE 8841 tronics assembler job classification in the Dictionary of Occu- pational Titles (“DOT”), Tommasetti could not perform electronics assembly work as he actually performed it because it would require him to lift more than ten pounds. However, the VE testified that electronics assembly work is performed in a variety of ways in the national economy. The ALJ deferred to the VE’s assessment, stating that “regardless of the differences in demands in the position as performed in the national economy, it would not ordinarily require that the individual perform activities requiring a greater residual func- tional capacity” than that of Tommasetti.

[12] This assessment is contrary to the ALJ’s determination that Tommasetti could only perform “sedentary” work because the DOT lists the “electronics assembler” position as requiring “light” exertion. Dictionary of Occupational Titles § 726.684-018 (4th ed. 1991); see 20 C.F.R. § 404.1567(a), (b). The DOT creates a rebuttable presumption as to the job classification. Johnson, 60 F.3d at 1435. To deviate from the DOT classification, an ALJ “may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation.” Id. Here, the ALJ offered her own speculative explanation to rebut the DOT’s presumptive exertion requirement, comment- ing that the reason for the light exertion label is that the posi- tion “may require some pushing or pulling of arm controls.” She concluded that this requirement should not elevate the job classification from sedentary to light. The ALJ also deferred to the VE’s personal knowledge and experience as supersed- ing the DOT to the extent that the light exertion label was related to any standing/walking requirements.

[13] The ALJ’s determination that Tommasetti could return to his work as an electronics assembler is not supported by the record. Instead of persuasive evidence in the record, the ALJ relied on her own speculation and the VE’s brief and indefi- nite testimony. Id.; Soc. Sec. Ruling 00-4p (Dec. 4, 2000) (stating that “[t]he adjudicator must resolve the conflict by 8842 TOMMASETTI v. ASTRUE determining if the explanation given by the VE or [vocational specialist] is reasonable and provides a basis for relying on the VE or [vocational specialist] testimony rather than on the DOT information”). The ALJ did not identify what aspect of the VE’s experience warranted deviation from the DOT, and did not point to any evidence in the record other than the VE’s sparse testimony for the deviation. Therefore, the ALJ’s step four finding was erroneous.

[14] Although the ALJ’s step four determination constitutes error, it is harmless error in light of the ALJ’s alternative find- ing at step five. At step five, the ALJ concluded that, assum- ing Tommasetti could not perform past work, he could still perform other work in the national and local economies that existed in significant numbers. 20 C.F.R. §§ 404.1520(a) (4)(v), 404.1560(c); Robbins, 466 F.3d at 885 (holding that error that is inconsequential to the ultimate nondisability determination is harmless error). The ALJ, relying on the VE’s testimony, found that Tommasetti could work as a semi- conductor assembler, which is a sedentary, semi-skilled posi- tion offering 100,000 positions nationally and 9,000 regionally. See Dictionary of Occupational Titles § 726.684- 034. The VE testified that Tommasetti’s prior skills as an electronics assembler transferred to the “very closely related” semiconductor assembler job because both positions involve similar assembler tools, assembler products, and sub- assembly components, and the semiconductor assembler posi- tion simply involves smaller items.

[15] The ALJ also found that the VE’s testimony aug- mented Rule 201.07 of the Medical Vocational Guidelines (the “grids”), 20 C.F.R. Part 404, Subpart P, Appendix 2,4 4 We summarized the role of the grids, in the evaluation of a disability claim in Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. 2006): The grids are applied at the fifth step of the analysis under 20 C.F.R. § 404.1520, and present, in table form, a short-hand TOMMASETTI v. ASTRUE 8843 which provides an alternate basis for finding that Tommasetti was not disabled. Pursuant to Rule 201.07, a claimant of advanced age who is limited to sedentary work, has a high school degree, can perform skilled or semi-skilled work, and has transferrable skills is “not disabled.” Rule 201.07 is aug- mented by Rule 201.00(f), which states that “[i]n order to find transferability of skills to skilled sedentary work for individu- als who are of advanced age . . . , there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.” Tommasetti meets these criteria.

Tommasetti argues that the ALJ’s step five determination is undermined by this court’s decision in Lounsburry v. Barn- hart, 468 F.3d 1111 (9th Cir. 2006), which was filed after the district court’s decision in this case. In Lounsburry, the claim- ant was restricted to performing light work and had transferr- able skills. Id. at 1116. The court found that Rule 202.07, from the grid table governing light exertion, applied and that Footnote 2 to Rule 202.07 expressly incorporated language from Rule 202.00(c). Id. The result of this incorporation was that a person of advanced age with a high school degree who could do light work could only be found “not disabled” if her skills were readily transferable to a “significant range” of

method for determining the availability and numbers of suitable jobs for a claimant. [Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).] The grids categorize jobs by their physical-exertional requirements, and set forth a table for each category. A claim- ant’s placement with the appropriate table is determined by applying a matrix of four factors identified by Congress—a claimant’s age, education, previous work experience, and physi- cal ability. For each combination of these factors, they direct a finding of either “disabled” or “not disabled” based on the num- ber of jobs in the national economy in that category of physical- exertional requirements. Id. If a claimant is found able to work jobs that exist in significant numbers, the claimant is generally considered not disabled. Heckler v. Campbell, 461 U.S. 458, 461 . . . (1983). 8844 TOMMASETTI v. ASTRUE semi-skilled or skilled work. Id. at 1116-17. The court held that one “occupation” did not constitute a “significant range” and, because the ALJ had only identified one occupation, Lounsburry was “disabled.” Id. at 1117.

[16] Tommasetti asks the court to extend Lounsburry’s def- inition of “significant range,” which pertains to a light work analysis under Rule 202.00(c), to his case, which involves a sedentary work analysis under Rule 201.07. He asserts that applying Lounsburry, the ALJ erred at step five by identifying only one occupation to which Tommasetti could adjust, i.e., semiconductor assembler. We do not agree. Lounsburry is distinguishable because it involved a different grid rule that was based on light exertion (Rule 202.07), whereas this case involves a grid rule based on sedentary exertion (Rule 201.07). A plain reading of Rule 201.07 makes clear that it is not augmented by Rule 202.00(c), the specific text which was the driving consideration in Lounsburry. 468 F.3d at 1116-17. Moreover, the grid rules related to sedentary exertion do not contain the language of Rule 202.00(c).5 The Social Security Administration has promulgated rules that treat jobs requiring light exertion and sedentary exertion differently under the grids. Tommasetti has not convinced us that we should do otherwise. Accordingly, we reject Tommasetti’s attempt to graft rules applicable to the light exertion grid onto the seden- tary exertion grid. A contrary result would lead to the con- fused and arbitrary application of grid rules from one exertional category to other exertional categories and might well, in effect, defeat the goal of consistency and uniformity in decision-making that the particularized grids serve. See Soc. Sec. Ruling 83-10 (1983) (stating that the regulations were expanded to include Appendix 2 and the grids to “in- crease consistency and promote the uniformity with which disability determinations are made” at step five). 5 Tommasetti’s argument that Rule 201.00(e) is the “same provision” as Rule 202.00(c) is not persuasive based on the text of the rules. TOMMASETTI v. ASTRUE 8845 IV. Conclusion

We affirm the district court’s conclusion that substantial evidence supports the ALJ’s decision that Tommasetti was not disabled and thus not entitled to disability benefits. The ALJ provided clear and convincing reasons for rejecting Tom- masetti’s testimony as not credible, and she provided specific and legitimate reasons for discounting Dr. Nachenberg’s opin- ions regarding Tommasetti’s physical limitations and ability to perform sedentary work. Finally, although the ALJ erred at step four in finding that Tommasetti could perform his past work, this error was harmless because the ALJ properly con- cluded as an alternative at step five that he could perform work in the national and regional economies as a semiconduc- tor assembler.

AFFIRMED.