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Banegas v. Saul

United States District Court, D. New Mexico

October 23, 2019

JIMMY RAY BANEGAS SR., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for Rehearing, with Supporting Memorandum (Doc. 17), filed on July 12, 2019. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. See Docs. 3; 6; 7. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is well-taken and will be granted.

         I. Procedural History

         This is Plaintiff's second appeal. Mr. Jimmy Ray Banegas, Sr. (Plaintiff) protectively filed an application with the Social Security Administration for Disability Insurance Benefits (DIB) under Title II of the Social Security Act on May 15, 2013. Administrative Record[1] (AR) at 169-70. Plaintiff alleged a disability onset date of November 5, 2010. AR at 169. Plaintiff's earning record showed that he met “the insured status requirements of the Social Security Act through June 30, 2016.” AR at 15.

         Disability Determination Services determined that Plaintiff was not disabled both initially (AR at 82-91) and on reconsideration (AR at 93-103). Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of his applications. AR at 115-16. Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 55-81. ALJ Eric Weiss issued an unfavorable decision on January 20, 2016. AR at 10-26. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 8-9), which the Council denied on April 8, 2016 (AR at 1-7). Thus, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         Plaintiff appealed ALJ Weiss's decision to this Court. See Banegas v. Berryhill, Civ. No. 16-500 KK, 2017 WL 3172783 (D.N.M. May 25, 2017). United States Magistrate Judge Kirtan Khalsa granted Plaintiff's motion to remand on the basis that the ALJ failed to properly evaluate his oculopharyngeal muscular dystrophy (OMD) and related symptoms. See Id. at *2-4.

         While Plaintiff's federal appeal was pending, he filed a subsequent Title II claim for DIB on June 9, 2016. See AR at 604. “The State agency found [him] disabled as of March 26, 2016.” AR at 604. The Appeals Council directed the ALJ, on remand from this Court, to consider the period prior to March 26, 2016. See AR at 604; see also Doc. 19 at 1.

         On May 9, 2018, ALJ Eric Weiss held a second de novo hearing, at which both Plaintiff and another VE testified. AR at 561-77. ALJ Weiss then issued a second unfavorable decision on June 4, 2018. AR at 544-60. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 619-20), which the Council denied on October 17, 2018 (AR at 537-43). Consequently, the ALJ's decision became the final decision of the Commissioner. Doyal, 331 F.3d at 759. Plaintiff then filed a suit in this Court seeking remand for a rehearing. Doc. 1.

         II. Applicable Law and the ALJ's Findings

         A claimant seeking disability benefits must establish that 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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process to show: (1) he is not engaged in “substantial gainful activity”; (2) he has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and (3) his impairment(s) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (RFC), he is unable to perform her past relevant work (PRW). 20 C.F.R § 404.1520(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of [his] medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(a)(1)). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at step five to show that” the claimant retains sufficient RFC “to perform work in the national economy, given his age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988)); see also 20 C.F.R. § 404.1520(a)(4)(v).

         At Step One of the process, [2] ALJ Weiss found that Plaintiff “did not engage in substantial gainful activity during the period from his alleged onset date of November 5, 2010 through his date last insured of June 30, 2016.” AR at 549 (citing 20 C.F.R. §§ 404.1571-1576). At Step Two, the ALJ concluded that Plaintiff “had the following severe impairments: degenerative joint disease of the right shoulder (with rotator cuff tear, subacromial impingement, and intra-articular tear of biceps tendon, status post surgical repair); degenerative arthritis of the right knee; hearing loss; coronary artery disease (status post myocardial infarction and stenting); [OMD] with bilateral ptosis; obstructive sleep apnea; and obesity.” AR at 549 (citing 20 C.F.R. § 404.1520(c)). ALJ Weiss also noted the following nonsevere impairments that do not “significantly limit the ability to perform basic work activities”: “left inguinal hernia (status post surgical repair), hypertension, and hyperlipidemia.” AR at 549-50.

         At Step Three, the ALJ found that Plaintiff “did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 550 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). The ALJ determined that Plaintiff,

through March 25, 2016, . . . had the [RFC] to lift, carry, push, and pull twenty pounds occasionally and ten pounds frequently. He could stand and walk for six hours per eight-hour workday and could sit for six hours per eight-hour workday, with normally scheduled breaks. He could occasionally climb ramps and stairs, but could never climb ladders, ropes, or scaffolds. He could occasionally balance, stoop, crouch, kneel, and crawl. He could occasionally reach overhead with the dominant right upper extremity. He needed to avoid more than a moderate noise environment, and could only have occasional exposure to unprotected heights, dangerous moving machinery, and pulmonary irritants, such as dust, fumes, odors, and gases.

AR at 550. The ALJ determined that Plaintiff was capable of performing his PRW as an armed guard. AR at 554. Ultimately, the ALJ found that Plaintiff “was not under a disability, as defined in the Social Security Act, from November 5, 2010, the alleged onset date, through March 25, 2016.” AR at 554 (citing 20 C.F.R. § 404.1520(f)).

         III. Legal Standard

         The Court must “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.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (10th Cir. 2012) (citation omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172). “It requires more than a scintilla, but less than a preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (alteration in original)). The Court will “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks omitted)).

         “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200). The Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200).

         IV. Discussion

         Plaintiff contends that the following issues require reversal: (1) the ALJ improperly rejected his report of symptoms and inadequately weighed the evidence, thus the RFC is contrary to substantial evidence of record; (2) the ALJ erred in finding he could perform his PRW; and (3) the Appeals Council erred by failing to remand pursuant to Lucia v. SEC, 138 S.Ct. 2044 (2018).[3] Doc. 17 at 1-2.

         A. The Court will remand for further analysis of Plaintiff's RFC.

         Plaintiff first argues that ALJ Weiss's RFC determination is not supported by substantial evidence with respect to his lower extremity limitations, upper extremity limitations, and the limitations attributable to his OMD, cardiac condition, and fatigue. Doc. 17 at 6-18.

         1. Upper extremity limitations

         Plaintiff argues that the ALJ's RFC determination that he can “lift, carry, push, and pull twenty pounds occasionally and ten pounds frequently” and can “occasionally reach overhead with the dominant right upper extremity” (AR at 550) is contrary to substantial evidence. Doc. 17 at 7.

         The Court must uphold the ALJ's RFC determination if it is supported by substantial evidence, which is “more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084. Here, ALJ Weiss's decision is supported by substantial evidence. He noted Plaintiff's reports of pain and weakness of the right shoulder throughout the record (AR at 551 (citing, e.g., AR at 303, 323, 355, 382)) and his July 1, 2013 self-report that he could lift 20 pounds with difficulty due to the impairment in his right shoulder (AR at 551 (citing AR at 241)). The ALJ observed that before Plaintiff underwent right shoulder arthroscopy with arthroscopic rotator cuff repair and subacromial decompression and acromioplasty (AR at 551 (citing AR at 282, 303, 311, 331, 366, 382)), his provider, Marie F. Hatam, M.D., had prescribed medications (Ibuprofen 800 mg), physical therapy, and shoulder injections (AR at 551 (citing AR at 283, 303, 311, 331); see also AR at 340), and physical exams had ...


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