United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
Background and Procedural Record
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.) Mr. Banegas has two years of college,
and worked as an industrial security officer. (Tr. 207.)
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.
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.)
Standard of Review
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).
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
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.)
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 ...