United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Social Security
Administrative Record (Doc. 17) filed March 5, 2018, in
support of Plaintiff Kenneth Marc Peralta'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 and Title XVI supplemental security income
benefits. On June 14, 2018, Plaintiff filed his Motion to
Remand or Reverse (“Motion”). (Doc. 22.) The
Commissioner filed a Response in opposition on August 3, 2018
(Doc. 24), and Plaintiff filed a Reply on August 18, 2018.
(Doc. 25.) 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
Kenneth Marc Peralta (“Mr. Peralta”) alleges that
he became disabled on March 27, 2013, at the age of forty-six
because of diabetes type 1, kidney transplant, insomnia, high
blood pressure, and anxiety. (Tr. 254, 257.) Mr. Peralta
completed the twelfth grade in 1984, and worked as a casino
maintenance tech and counter top production employee. (Tr.
1, 2013, Mr. Peralta 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.
91, 229-30.) Mr. Peralta also filed for Supplemental Security
Income (“SSI”) under Title XVI of the Act, 42
U.S.C. § 1381 et seq. (Tr. 92, 231-32.) Mr.
Peralta's applications were initially denied on April 9,
2014. (Tr. 78-90, 91, 92, 93-105, 146-49, 150-53.) They were
denied again at reconsideration on November 25, 2014. (Tr.
106, 107, 108-122, 123-137, 157-59, 160-63.) On December 18,
2014, Mr. Peralta requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 164-65.)
The ALJ conducted a hearing on September 14, 2016. (Tr.
46-77.) Mr. Peralta appeared in person at the hearing with
attorney representative Angela Adkins. (Id.)
The ALJ took testimony from Mr. Peralta (Tr. 52-70), and an
impartial vocational expert (“VE”), Bonnie Ward.
(Tr. 71-77.) On October 28, 2016, ALJ Doug Gabbard, II,
issued an unfavorable decision. (Tr. 25-39.) On October 14,
2017, the Appeals Council issued its decision denying Mr.
Peralta's request for review and upholding the ALJ's
final decision. (Tr. 1-7.) On November 16, 2017, Mr. Peralta
timely filed a Complaint seeking judicial review of the
Commissioner's final decision. (Doc. 1.)
Disability Determination Process
individual is considered disabled if he is unable “to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A) (pertaining
to disability insurance benefits); see also 42
U.S.C. § 1382(a)(3)(A) (pertaining to supplemental
security income disability benefits for adult individuals).
The Social Security Commissioner has adopted the familiar
five-step sequential analysis to determine whether a person
satisfies the statutory criteria as follows:
(1) At step one, the ALJ must determine whether the claimant
is engaged in “substantial gainful
activity.” If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his
(2) At step two, the ALJ must determine the severity of the
claimed physical or mental impairment(s). If the claimant
does not have an impairment(s) or combination of impairments
that is severe and meets the duration requirement, he is not
(3) At step three, the ALJ must determine whether a
claimant's impairment(s) meets or equals in severity one
of the listings described in Appendix 1 of the regulations
and meets the duration requirement. If so, a claimant is
(4) If, however, the claimant's impairments do not meet
or equal in severity one of the listing described in Appendix
1 of the regulations, the ALJ must determine at step four
whether the claimant can perform his “past relevant
work.” Answering this question involves three phases.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996). First, the ALJ considers all of the relevant medical
and other evidence and determines what is “the most
[claimant] can still do despite [her physical and mental]
limitations.” 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). This is called the claimant's residual
functional capacity (“RFC”). Id.
§§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ
determines the physical and mental demands of claimant's
past work. Third, the ALJ determines whether, given
claimant's RFC, the claimant is capable of meeting those
demands. A claimant who is capable of returning to past
relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past
relevant work, the Commissioner, at step five, must show that
the claimant is able to perform other work in the national
economy, considering the claimant's RFC, age, education,
and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however,
the Commissioner is able to make the required showing, the
claimant is deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability
insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits);
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th
Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005). The claimant has the initial
burden of establishing a disability in the first four steps
of this analysis. Bowen v. Yuckert, 482 U.S. 137,
146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987).
The burden shifts to the Commissioner at step five to show
that the claimant is capable of performing work in the
national economy. Id. A finding that the claimant is
disabled or not disabled at any ...