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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Scott Aaron Breitenstein, 

Plaintiff, 

v. 

Carolyn W Colvin, 

Defendant. 

No. CV-16-08016-PCT-DLR

ORDER 

 

 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, 

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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 

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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.) 

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 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 in Applying Chavez

 When there has been a final agency decision of nondisability and the claimant 

subsequently files a new application, the prior administrative decision creates a 

presumption of continuing nondisability. See Chavez, 844 F.2d at 693. To overcome this 

presumption, the claimant “must prove ‘changed circumstances’ indicating greater 

disability.” Id. Social Security Acquiescence Ruling 97-4(9) provides guidance on the 

Chavez decision: 

In order to rebut the presumption of continuing nondisability, a claimant “must prove ‘changed circumstances’ indicating a greater disability.” In addition, the court indicated that where 

the claimant rebuts the presumption by proving a “changed 

circumstance,” principles of res judicata require that certain 

findings contained in the final decision by the ALJ on the prior claim be given some res judicata consideration in determining whether the claimant is disabled . . . . The court 

concluded that where the final decision by the ALJ on the prior claim, which found the claimant not disabled, contained 

findings of the claimant’s residual functional capacity, education, and work experience, SSA may not make different findings in adjudicating the subsequent disability claim unless there is new and material evidence relating to the claimant’s residual functional capacity, education or work experience. 

AR-97-4(9), 1997 WL 742758 at *2. Changed circumstances may include: (1) a change 

in the claimant’s age category, (2) an increase in the severity of impairments, (3) newly 

alleged impairments, or (4) a change in the Commissioner’s disability criteria. Id. at *3; 

Chavez, 844 F.2d at 693. 

 Breitenstein argues that the severity of his impairments has increased since his 

prior disability application. (Doc. 10 at 15.) The ALJ, however, noted the existence of a 

prior unfavorable administrative decision and, applying Chavez and AR-97-4(9), 

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concluded that Breitenstein had not shown changed circumstances material to the 

determination of disability. (A.R. 26, 32.) Despite Breitenstein’s allegations of 

worsening conditions, the ALJ noted that the record showed the same routine, 

conservative treatment and found “the lack of more aggressive treatment or surgical 

intervention suggests that [Breitenstein’s] symptoms and limitations were not as severe as 

he alleged.” (Id. at 32.) Finding that Breitenstein had not overcome the presumption of 

continuing nondisability, the ALJ gave significant weight to the state agency medical 

consultants from the prior application and found that the objective medical evidence did 

not support the alleged severity of Breitenstein’s symptoms. (Id. at 37.) 

 The ALJ’s decision is supported by substantial evidence. In Breitenstein’s prior 

disability claim, evidence showed that he underwent a laminectomy procedure in June 

2008 to treat a herniated disc in his lower back. (Id. at 33.) After surgery, Breitenstein 

reported continued back pain but he treated his condition conservatively with physical 

therapy, injections, and pain management. (Id.) Since then, Breitenstein’s symptoms and 

the objective medical findings remained essentially the same. His doctors maintained 

medication management and have not recommended more aggressive treatment. (Id. at 

34.) At follow up appointments between 2011 and 2013, Breitenstein’s physical 

examinations and objective imaging findings showed his condition was unchanged; his 

pain was under reasonable control and he did not want to change his medication dosages. 

(Id. at 35.) Although Breitenstein complained in late 2011 of neck pain, no changes were 

made to his treatment plan. (Id.) Moreover, during the hearing on his second disability 

claim, Breitenstein did not complain that his functional capacity was limited by neck 

pain. (Id. at 58-59.) 

 Further, Breitenstein testified that he participated to a limited extent in daily 

activities such as grocery shopping, driving, cooking, washing dishes, walking to the 

mailbox, using the computer, and watching television. (Id. at 32.) He also reported that 

he occasionally went fishing, and that his most recent fishing trip was one month before 

the hearing. (Id.) The ALJ properly found that this evidence was inconsistent with a 

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material increase in the severity of Breitenstein’s symptoms since March 2011, and 

consistent with Breitenstein’s ability to perform sedentary work as stated in his previous 

RFC assessment. (Id. at 31.) The Court finds no error. 

II. The ALJ Did Not Err in Weighing Medical Source Evidence 

 Breitenstein next contends that the ALJ improperly discounted the opinion of Dr. 

Kazmi, his treating physician. (Doc. 10 at 18.) In weighing medical source opinions, the 

Ninth Circuit distinguishes among three types of physicians: (1) treating physicians, who 

actually treat the claimant; (2) examining physicians, who examine but do not treat the 

claimant; and (3) non-examining physicians, who neither treat nor examine the claimant. 

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight should be 

given to the opinion of a treating physician than to the opinions of non-treating 

physicians. Id. However, a treating physician’s opinion is entitled to controlling weight 

only if the opinion is well-supported by medically acceptable diagnostic techniques and is 

not inconsistent with other substantial evidence in the case record. 20 C.F.R. §§ 

404.1527(d)(2), 416.927(c)(2). Where a treating physician’s opinion is contradicted, it 

may not be rejected without “specific and legitimate reasons” supported by substantial 

evidence in the record. Lester, 81 F.3d at 830. However, the ALJ “need not accept the 

opinion of any physician if that opinion is brief, conclusory, and inadequately supported 

by clinical findings.” Thomas, 278 F.3d at 957. 

 On April 21, 2011, during his first visit with Breitenstein, Dr. Kazmi opined that 

Breitenstein “is unable to work in any capacity.” (A.R. 483.) He noted that Breitenstein 

was “unable to do activities because of the pain. He is not sleeping well because of the 

pain. He has avoided driving for two years because of the numbness and pain. Cortisone 

injections failed [and] [p]ain medication has not helped, including Oxycontin and 

morphine.” (Id.) In a follow-up appointment on June 2, 2011, Dr. Kazmi stated that, due 

to chronic pain and sciatica, Breitenstein was limited to sitting or standing for one hour 

each per eight-hour shift and he would be absent from work more than three days per 

month. (Id. at 483-91.) 

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 The ALJ properly assigned little weight to Dr. Kazmi’s opinion about 

Breitenstein’s inability to work because that conclusion was “an opinion on an issue 

reserved to the Commissioner.” (Id. at 35); see 20 C.F.R. § 416.927(d). Additionally, 

the ALJ gave little weight to the remainder of Dr. Kazmi’s opinion because it was not 

supported by objective evidence and was inconsistent with the record as a whole. (A.R. 

35.) For example, Dr. Kazmi’s treatment notes from November 6, 2012 state that 

Breitenstein’s pain is “under reasonable control” and that “patient does not want to 

change the dosage.” (Id. at 569.) In November 2013, Dr. Kazmi noted again that 

Breitenstein’s pain was “under reasonable control.” (Id. at 1127.) The ALJ found that 

Dr. Kazmi primarily summarized Breitenstein’s subjective complaints but did not provide 

objective findings to support his assessments. (Id. at 36.) The ALJ offered specific and 

legitimate reasons, supported by substantial evidence, for discounting Dr. Kazmi’s 

opinions, and the Court finds no error. 

III. The ALJ Did Not Err in Evaluating Breitenstein’s Credibility 

 Breitenstein argues that the ALJ erred in evaluating the credibility of his symptom 

testimony. (Doc. 10 at 20.) In evaluating the credibility of a claimant’s testimony 

regarding subjective pain or other symptoms, the ALJ is required to engage in a two-step 

analysis: (1) determine whether the claimant presented objective medical evidence of an 

impairment that could reasonably be expected to produce some degree of the pain or 

other symptoms alleged; and, (2) if there is no evidence of malingering, reject the 

claimant’s testimony about the severity of the symptoms only by giving specific, clear, 

and convincing reasons for the rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 

2009). 

 Breitenstein testified that any movement provoked pain and numbness down his 

legs and back, which prevented him from cooking and engaging in hobbies. (A.R. 32.) 

He reported debilitating back and leg pain and said his medications caused headaches and 

memory loss. (Id.) The ALJ gave little weight this testimony. (Id.) The ALJ found that 

Breitenstein’s symptom testimony conflicted with his reported daily activities, medical 

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records, and treatment plans. “One strong indication of the credibility of an individual’s 

statements is their consistency, both internally and with other information in the case 

record.” SSR 96-7p, 1996 WL 374186 at *5. Breitenstein testified that he occasionally 

went grocery shopping, drove a car, cooked, washed dishes, walked to the mailbox, used 

a computer, watched television, and went fishing. (A.R. 32.) Breitenstein also told Dr. 

Kazmi that he experienced no side effects from his medication. (Id.) Additionally, 

Breitenstein’s imaging studies showed only minor degenerative changes and no 

significant malalignment, no compression fracture, and otherwise normal upper facet 

joint. (Id. at 34-35.) Lastly, Breitenstein refused referrals to physical therapy and a pain 

management specialist. (Id. at 515.) The ALJ therefore concluded that Breitenstein’s 

testimony was not credible and that evidence undermined his complaints. (Id. at 34.) 

The ALJ gave specific, clear, and convincing reasons for this conclusion, which is 

supported by substantial evidence. The Court finds no error. 

IV. New Evidence Submitted to the Appeals Council Does Not Require Remand

 After a final agency determination of nondisability, if “a claimant submits 

evidence for the first time to the Appeals Council, which considers that evidence in 

denying review of the ALJ’s decision, the new evidence is part of the administrative 

record, which the district court must consider in determining whether the Commissioner’s 

decision is supported by substantial evidence.” Brewes v. Comm’r of Soc. Sec. Admin., 

682 F.3d 1157, 1159-60 (9th Cir. 2012). “Under 42 U.S.C. § 405(g), in determining 

whether to remand a case in light of new evidence, the court examines both whether the 

new evidence is material to a disability determination and whether a claimant has shown 

good cause for having failed to present the new evidence to the ALJ earlier.” Mayes v. 

Massanari, 276 F.3d 453, 461 (9th Cir. 2001). New evidence is material if it bears 

“directly and substantially on the matter in dispute.” Ward v. Schweiker, 686 F.2d 762, 

764 (9th Cir. 1982) (internal quotation and citation omitted). The claimant must also 

demonstrate “a reasonable possibility that the new evidence would have changed the 

outcome of the administrative hearing.” Mayes, 276 F.3d at 462. To meet the good 

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cause requirement, the claimant must demonstrate that the new evidence was unavailable 

at the time of the administrative proceeding and explain why he did not seek the expert’s 

opinion earlier. Id. at 463; Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (“If new 

information surfaces after the Secretary’s final decision and the claimant could not have 

obtained that evidence at the time of the administrative proceeding, the good cause 

requirement is satisfied); Sanchez v. Sec. of Health and Human Servs., 812 F.2d 509, 512 

(9th Cir. 1987) (holding that the applicant lacked good cause to remand for consideration 

of two psychological examinations prepared after the applicant’s disability determination 

when the attorney knew of the applicant’s memory loss but failed to explain why the 

applicant had not requested a mental evaluation or pressed his mental impairment claim 

at the hearing before ALJ). 

 Breitenstein submitted to the Appeals Council a six-page spinal impairment 

questionnaire completed by Dr. Chad Hartley in July 2014. (A.R. 1172-77.) The report 

indicated that Dr. Hartley treated Breitenstein for neck problems between May and July 

2014. (Id.) It also showed that Dr. Hartley was in the process of scheduling Breitenstein 

for surgery. (Id.) Breitenstein submitted this report to the Appeals Council in August 

2014. (Id. at 1171.) The Appeals Council considered this information and made it part 

of the administrative record. (Id. at 3.) The Appeals Council also reviewed medical 

records from Panacea Brain and Spine dated May 30, 2014 through June 2, 2015, medical 

records from Havasu Regional Medical Center dated August 25, 2014 through February 

10, 2015, and medical records from Dr. Kazmi dated May 4, 2015. (Id.) 

 The Appeals Council found that Breitenstein did not show the new evidence was 

material to the disability determination because the new evidence pertains to treatment 

occurring after the ALJ’s March 7, 2014 decision. (Id.) The new evidence did not 

concern the relevant time between the alleged disability onset date in March 2011 and the 

March 2014 decision date; therefore it did not provide a basis for changing the ALJ’s 

decision because it would not have changed the outcome of the administrative hearing. 

(Id.) Furthermore, Breitenstein lacks good cause to remand because his neck 

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examinations were prepared after his disability determination, and he fails to explain why 

he did not request a neck evaluation or press his neck impairment claim at the hearing 

before the ALJ. The Court finds no error. 

CONCLUSION 

 For the foregoing reasons, the ALJ’s decision is free of harmful legal error and 

supported by substantial evidence. 

IT IS ORDERED that the final decision of the Commissioner of Social Security 

is AFFIRMED. The Clerk shall enter judgment accordingly and terminate this case. 

 Dated this 30th day of November, 2016. 

Douglas L. Rayes 

United States District Judge 

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