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Banegas v. Berryhill

United States District Court, D. New Mexico

May 25, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          KIRTAN KHALSA, United States Magistrate Judge

THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 17) filed November 10, 2016 in support of Plaintiff Jimmy Ray Banegas's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits. On January 13, 2017, Plaintiff filed his Motion to Reverse and Remand for Rehearing With Supporting Memorandum (“Motion”). (Doc. 20.) The Commissioner filed a Response in opposition on March 14, 2017 (Doc. 22), and Plaintiff filed a Reply on March 28, 2017. (Doc. 23.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Jimmy Ray Banegas (“Mr. Banegas”) alleges that he became disabled on November 5, 2010, at the age of fifty-six because of knee arthritis, shoulder arthroscopy, oculopharyngeal muscular dystrophy, arthritis, right shoulder injury, loss of strength in legs, weakness in arms, difficulty swallowing, and vision problems due to droopy eyelids. (Tr. 169-70, 206.[3]) Mr. Banegas has two years of college, and worked as an industrial security officer. (Tr. 207.)

         On May 15, 2013, Mr. Banegas protectively filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 169-70.) Mr. Banegas's application was initially denied on August 6, 2013. (Tr. 92, 82-91, 105-08.) It was denied again at reconsideration on August 29, 2013. (Tr. 93-103, 104, 110-14.) On March 10, 2014, Mr. Banegas requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 115-16.) The ALJ conducted a hearing on December 11, 2015. (Tr. 55-81.) Mr. Banegas appeared in person at the hearing with attorney Gary Martone. (Id.) The ALJ took testimony from Mr. Banegas (Tr. 60-73), and an impartial vocational expert (“VE”), Shelley K. Eike. (Tr. 74-80.) On January 20, 2016, the ALJ issued an unfavorable decision. (Tr. 10-22.)

         On April 8, 2016, the Appeals Council issued its decision denying Mr. Banegas's request for review and upholding the ALJ's final decision. (Tr. 1-6.) On May 31, 2016, Mr. Banegas timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Standard of Review

         We review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). A decision is based on substantial evidence where it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The Commissioner's decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10thCir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         In considering an application for disability insurance benefits, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. 20 C.F.R. §§ 404.1520(a)(4)(i-iv); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the claimant successfully meets that burden, the burden of proof shifts to the Commissioner at step five to show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. 404.1520(a)(v); Grogan, 399 F.3d at 1261.

         III. Analysis

         The ALJ made his decision that Mr. Banegas was not disabled at step four of the sequential evaluation. He found that Mr. Banegas had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except as follows:

he can lift and/or carry 20 pounds occasionally and 10 pounds frequently. He can stand and/or walk for six hours out of an eight-hour workday, with normal breaks. He can sit for six hours out of an eight-hour workday, with normal breaks. He is able to occasionally reach overhead with his dominant right upper extremity. He is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying. He can occasionally climb ramps and stairs, but never ladders, ropes and scaffolds. He is able to occasionally balance, stoop, crouch, kneel and crawl. He must avoid more than occasional exposure to unprotected heights, moving machinery and pulmonary irritants, such as dust, fumes, odors and gases.

(Tr. 17.) Based on the RFC and the testimony of the VE, the ALJ concluded that Mr. Banegas was capable of performing his past relevant work as a gate guard and security guard and that he was therefore not disabled. (Tr. 22.)

         Mr. Banegas asserts three arguments in support of his Motion as follows: (1) the ALJ erred by failing to consider his oculopharyngeal muscular dystrophy (“OMD”) and related symptoms in determining the RFC; (2) the ALJ erred by failing to make a function-by-function assessment; and (3) the ALJ erred at step four in finding that Mr. Banegas could return to his past relevant work. The Court agrees that the ALJ failed to properly consider Mr. Banegas's ...

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