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Breitmeyer v. Colvin

United States District Court, D. Oregon, Portland Division

May 12, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT E. JONES, Senior District Judge.

Plaintiff Robert Breitmeyer appeals the Commissioner's decision to deny his application for disability insurance benefits under Title II of the Social Security Act, and to deny in part his concurrent application for supplemental security income under Title XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.


Breitmeyer filed concurrent applications under Title II and Title XVI alleging he became disabled beginning November 30, 2000, after suffering a job injury in 1998. Admin. R. 14, 151, 156, 173. Breitmeyer's insured status under the Social Security Act expired on March 31, 2004. Admin. R. 16. He must establish that he became disabled on or before that date to prevail on his Title II claim. 42 U.S.C. § 423(a)(1)(A). Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).

An ALJ issued a partially favorable decision on Breitmeyer's Title XVI claim, finding that he became disabled in May 2006. The ALJ denied Breitmeyer's Title II claim because Breitmeyer failed to establish that he became disabled before the expiration of his insured status in March 2004. Admin. R. 22. In a previous appeal, this court remanded the adverse portion of the decision to the Commissioner for further proceedings. Admin. R. 479.

A different ALJ then reevaluated Breitmeyer's claim under the sequential disability determination process described in 20 C.F.R. §§ 404.1520 and 416.920, and issued the decision that is now before me on appeal. The period under consideration for this appeal begins at the alleged onset of disability in November 2000. The relevant period runs through March 31, 2004, for his Title II claim and through May 19, 2006, for his Title XVI claim.

The ALJ found that, during the relevant period, Breitmeyer's ability to perform basic work was limited by degenerative disc disease with residual effects of fusion surgery in the cervical spine, a cognitive disorder, and a dysthymic disorder. Admin. R. 395. The ALJ determined that, despite his impairments, Breitmeyer retained the residual functional capacity (RFC) to perform a range of sedentary work with lifting of no more that 10 pounds, standing or walking for a total of four hours during the workday, no overhead bilateral lifting, and limited climbing and postural activities such as kneeling or crouching. In addition, Breitmeyer could perform only simple, routine, repetitive, unskilled work involving low stress and limited contact with the public. The ALJ found that Breitmeyer could perform at an adequate pace for basic work, but could not meet a strict production line work pace. Admin. R. 398.

The vocational expert (VE) testified that a person with Breitmeyer's vocational factors and RFC would be able to perform occupations such as addresser, sorter, and collator operator which represent hundreds of thousands of jobs in the national economy. Admin. R. 402-403. The ALJ concluded that Breitmeyer had failed to show that he became disabled on or before May 19, 2006. Admin. R. 403.


The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence need not be a preponderance; it is such relevant evidence that a reasonable person might accept as adequate to support a conclusion. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). The Commissioner's factual findings must be upheld if supported by inferences reasonably drawn from the record, even if another rational interpretation is also supported. Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).


I. Claims of Error

Breitmeyer contends the ALJ failed to properly evaluate the evidence of his upper extremity limitations by failing to account for the objective findings and diagnosis of Steven Vander Waal, M.D. He contends this led the ALJ to err at step two of the sequential evaluation, by failing to list upper extremity limitations among his "severe" impairments, and to erroneously reach an RFC assessment that did not include limitations in manipulation. Breitmeyer contends the ALJ erroneously failed to obtain additional evidence regarding his mental impairments. ...

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