Tommasetti v. Astrue
filed July 17, 2008
Ninth District Court of Appeals
Cite as 06-55999

Claimant’s Application for Social Security Disability Benefits Rejected

Anthony Tommasetti works as an electronics assembler, who applied for social security disability benefits. He claimed he was unable to work because of lower back pain and “diabetes mellitus”.

To support his claim, Tommasetti consulted several physicians, including Dr. Andrea Nachenberg, who prepared reports that were presented in his claims.

At a hearing before an administrative law judge (ALJ), testimonies from a vocational expert (VE), a medical expert, and Tommasetti himself were presented.

Tommasetti claimed the following assertions:

• That he could not stand, walk, and 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.


• 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 used occasionally. He further testified “he had made no attempts to work and that he supported himself with $97,000 in savings”.

However, contrary to previous representations, Tommasetti testified that diabetes was not a disabling problem and that medication properly controlled it.

The ALJ also heard the testimonies of a medical expert and a vocational expert. The two expert witnesses testified on the following facts:

• Dr. Wiseman, an agency medical expert witness, testified based on his review of Nachenberg’s reports and did not endorse the assessment. The ALJ therefore found Wiseman’s testimony to be “equivocal” or vague.


• On the other hand, the vocational expert (VE) opined that Tommasetti could not perform the work he had previously performed it, but concluded directly that he could perform it as it is “typically performed.” The VE also testified that Tommasetti could perform work as a semiconductor assembler.

Based mostly on the VE’s testimony, the ALJ concluded that Tommasetti could perform other work in the national and local economies.

Tommasetti elevated the issue to the Appeals Council, which declined jurisdiction. When brought before the district court, ALJ’s decision was affirmed based on substantial evidence already presented.

During appeal, the Ninth District Court of Appeals declared that Tommassetti was not disabled as supported by the evidence presented.

Further, the court of appeals cited ALJ’s efforts in giving the claimant the “benefit of the doubt”, as it tried to give clear and convincing reasons to dispute the earlier findings of the claimant’s physician.

Before ruling, the court considered the following facts:

• that Tommasetti’s pain was not all-disabling because he did not seek aggressive or alternative treatment after he stopped taking an effective medication due to mild side effects


• that Tommasetti was vague regarding the period of disability and pain symptoms


• that his diabetes was not a “disabling problem,” was controlled by medication, and was not the reason he stopped working


• that Tommasetti may not have felt motivated to work because he had a large financial reserve or savings


• Tommasetti had demonstrated the ability to travel for an extended time to care for an ailing relative, which supported the ALJ’s inference that he was not as physically limited as he claimed to be.

Further, the appeals court held that the ALJ provided specific and legitimate reasons for rejecting Dr. Nachenberg’s opinion that were supported by the record, as it concluded that Dr. Nachenberg’s assessment was basically a re-statement of Tommasetti’s reports of pain, with little independent diagnosis or analysis.

However, the court concluded that the ALJ’s determination that Tommasetti could return to his work as an electronics assembler was not supported by the record. The court also found that the ALJ relied on her own speculation to define the claimant’s job and did not consult the Dictionary of Occupational Titles, which listed the proposed work as requiring light exertion, rather than being sedentary. This error was however minimal and harmless, the court opined.

In that regard, the court refused to extend the definition of “significant range” of semi-skilled or skilled work, between which skills could be readily transferred, based on (I)Lounsburry v. Barnhart(I), 468 F.3d 1111 (9th Cir. 2006). That case involved a different set of standards based on light exertion, rather than sedentary exertion.

Consequently, the court concluded that Tommasetti’s skills as an electronics assembler were very closely related to the semiconductor assembler job, which was a sedentary, semi-skilled position offering 100,000 jobs nationally and 9,000 regionally.

The Ninth District Court of Appeals therefore affirmed the district court judgment, which held that an administrative law judge provided clear and convincing reasons for rejecting a social security disability claimant’s testimony as not credible and provided specific and legitimate reasons for discounting the physician’s opinions regarding the claimant’s physical limitations and ability to perform sedentary work.