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,
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.
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.
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
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)).
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
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 947, 958 (9th Cir.2002). The ALJ conducts a two-step analysis to assess subjective testimony where, under step one, 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 claimant that appears less than candid; (2) unexplained or inadequately 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.
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 Tommasetti'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 program 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, conservative treatment' that she received").
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 Tommasetti "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 provided 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.
Third, the ALJ pointed to Tommasetti's testimony that his severe diabetes was not a "disabling problem," was controlled 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.
Fourth, the ALJ stated that regarding the period in question 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 motivation to work based on this savings was unreasonable. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982) (stating that in reaching findings the ALJ "is entitled to draw inferences logically flowing from the evidence").
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 Tommasetti was not as physically limited as he purported to be. Id.
The ALJ's reasons for discounting Tommasetti's testimony 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
Tommasetti next argues that the ALJ improperly discounted 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 minutes, sit for four hours in an eight-hour workday, stand continuously for thirty minutes, stand/walk for two hours in an eight-hour workday, required an ability to sit and stand at will, needed unscheduled
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 rejecting 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).
The ALJ complied with Magallanes and provided specific 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 "rehashing 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 consulting medical expert, testified that Dr. Nachenberg's Questionnaire primarily reflected Tommasetti's self-assessment and subjective willingness to work. Thus, the ALJ's adverse credibility determination supports the limited rejection of Dr. Nachenberg's opinion because it was primarily based on Tommasetti's subjective comments concerning his condition.
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 conclusions from Dr. Nachenberg's Questionnaire regarding the extent of Tommasetti's ability to stand and sit and his need for breaks "did not mesh with her objective data or history." Indeed, Dr. Nachenberg's medical records do not provide support for the limitations set out in the Questionnaire. The incongruity between Dr. Nachenberg's Questionnaire responses and her medical records provides an additional specific and legitimate reason for rejecting Dr. Nachenberg's opinion of Tommasetti's limitations.
Tommasetti contends that Dr. Wiseman's "deferral" to Dr. Nachenberg's assessment weighs against the ALJ's rejection of Dr. Nachenberg's opinion. Although Dr. Wiseman "accepted" Dr. Nachenberg's opinion, Dr. Wiseman simultaneously 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 definite 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 physician. 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, resolving conflicts in medical testimony,
C. Tommasetti's Ability to Perform Past Work and Other Work
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 "sedentary work," with a maximum lifting capacity of ten pounds. At step four, the ALJ and VE agreed that, based on the electronics assembler job classification in the Dictionary of Occupational 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 functional capacity" than that of Tommasetti.
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, commenting that the reason for the light exertion label is that the position "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 superseding the DOT to the extent that the light exertion label was related to any standing/walking requirements.
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 indefinite testimony. Id.; Soc. Sec. Ruling 00-4p (Dec. 4, 2000) (stating that "[t]he adjudicator must resolve the conflict by 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.
Although the ALJ's step four determination constitutes error, it is harmless error in light of the ALJ's alternative finding at step five. At step five, the ALJ concluded that, assuming 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
The ALJ also found that the VE's testimony augmented Rule 201.07 of the Medical Vocational Guidelines (the "grids"), 20 C.F.R. Part 404, Subpart P, Appendix 2,
Tommasetti argues that the ALJ's step five determination is undermined by this court's decision in Lounsburry v. Barnhart, 468 F.3d 1111 (9th Cir.2006), which was filed after the district court's decision in this case. In Lounsburry, the claimant was restricted to performing light work and had transferrable 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 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.
Tommasetti asks the court to extend Lounsburry's definition 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.
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 Tommasetti's testimony as not credible, and she provided specific and legitimate reasons for discounting Dr. Nachenberg's opinions 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 concluded as an alternative at step five that he could perform work in the national and regional economies as a semiconductor assembler.