United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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
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 (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.
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).
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.
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.
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.
Applicable Law and the ALJ's Findings
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).
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. §
One of the process,  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
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
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)).
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)).
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).
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). Doc. 17 at 1-2.
The Court will remand for further analysis of Plaintiff's
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.
Upper extremity limitations
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
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