United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
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.
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.)
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.)
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
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.
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.)
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.
The ALJ Did Not Err ...