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Breitenstein v. Colvin

United States District Court, D. Arizona

November 30, 2016

Scott Aaron Breitenstein, Plaintiff,
v.
Carolyn W Colvin, Defendant.

          ORDER

          Douglas L. Rayes United States District Judge.

         Plaintiff Scott Breitenstein appeals from the final decision of the Commissioner of Social Security (Commissioner), which denied his applications for disability insurance benefits and supplemental security income. The Court affirms because the decision of the Administrative Law Judge (ALJ) is free of legal error and supported by substantial evidence.

         BACKGROUND

         Breitenstein graduated high school and worked in construction until September 2007, when he sustained a back injury. (A.R. 38, 53, 84.) He filed an application for a period of disability and disability insurance benefits on March 13, 2009, but was found not disabled in a March 18, 2011 decision. (Id. at 26.) On May 10, 2011, Breitenstein filed a second application for a period of disability and disability insurance benefits. (Id.) He also applied for supplemental security income on September 26, 2011. (Id.) In both applications, he alleged disability beginning March 19, 2011, when he was 36 years old, due to lumbar degenerative disc disease, status post laminectomy. (Id. at 26, 38.)

         After Breitenstein's applications were denied on initial review and upon reconsideration, he requested a hearing. (Id. at 26.) On February 10, 2014, Breitenstein appeared with his non-attorney representative and testified at a video hearing before the ALJ. (Id.) A vocational expert also testified. (Id.) On March 7, 2014, the ALJ issued a decision that Breitenstein was not disabled within the meaning of the Social Security Act. (Id. at 23.) Thereafter, Breitenstein submitted new evidence and requested review of the ALJ's decision by the Appeals Council. (Id. at 1.) The Appeals Council considered the new evidence but denied Breitenstein's request for review, making the ALJ's decision the Commissioner's final decision. (Id.) On February 1, 2016, Breitenstein sought review by this Court. (Doc. 1.)

         LEGAL STANDARD

         The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

         DISCUSSION

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity (RFC) and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.

         At step one, the ALJ found that Breitenstein meets the insured status requirements of the Social Security Act through December 31, 2012, and that he has not engaged in substantial gainful activity since March 19, 2011. (A.R. 29.) At step two, the ALJ found that Breitenstein has the following severe impairment: degenerative disc disease of the lumbar spine, status post laminectomy. (Id.) At step three, the ALJ determined that Breitenstein does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 31.) At step four, the ALJ found that Breitenstein:

has the [RFC] to perform sedentary work . . . except [he] can occasionally climb ramps and stairs, but he cannot climb ladders, ropes, or scaffolds; [he] can occasionally balance, stoop, kneel, crouch, and crawl; [he] should avoid concentrated exposure to extreme cold, vibrations, and hazards, including moving machinery and heights.

(Id.) The ALJ also found that Breitenstein is unable to perform any of his past relevant work. (Id. at 37.) At step five, however, the ALJ concluded that jobs exist in significant numbers in the national economy that Breitenstein could perform, considering his age, education, work experience, and RFC. (Id. at 38.)

         On appeal, Breitenstein makes four arguments: (1) the ALJ erred by finding that Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988) requires adoption of findings from the March 18, 2011 nondisability decision; (2) the ALJ improperly weighed medical opinion evidence; (3) the ALJ improperly evaluated his credibility; and (4) the new evidence he submitted to the Appeals Council requires remand. (Doc. 10.) The Court addresses each in turn.

         I. The ALJ Did Not Err ...


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