Banegas v. Social Security Administration

Filing 25

MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa granting 20 MOTION to Remand to Agency for Rehearing, with Supporting Memorandum. (kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JIMMY RAY BANEGAS,
Plaintiff,
vs.

Civ. No. 16-500 KK

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER2
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.

1

Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Carolyn Colvin as the Acting
Commissioner of the Social Security Administration. Fed. R. Civ. P. 25(d).

2

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 4, 13, 14.)

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. 16970, 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.)

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Citations to “Tr.” are to the Transcript of the Administrative Record (Doc. 17) that was lodged with the Court on
November 10, 2016.

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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 (10th
Cir. 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.

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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
non-severe impairment of OMD and related symptoms in determining his RFC, and the decision
of the Commissioner is therefore reversed.
A.

RFC

The ALJ determined at step two that Mr. Banegas had severe impairments of right
shoulder rotator cuff tear, subacromial impingement and intra-articular tear of biceps tendon
status port surgical repair; degenerative arthritis of the right knee; and coronary artery disease
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status post stenting.

(Tr. 16.)

The ALJ also determined that Mr. Banegas suffered from

non-severe impairments of left inguinal hernia status post surgical repair, OMD, hypertension,
hyperlipidemia, visual disturbances (fallen eyelids) and obstructive sleep apnea (OSA). (Id.) In
discussing Mr. Banegas’s OMD, the ALJ explained that
. . . The claimant’s diagnosis of OMD causes him drooping eyelids, while the
evidence of record also indicates that he has some mild weakness in his upper and
lower extremities (Ex. 4F). I note, however, that the medical evidence of record
lacks information on the claimant obtaining treatment for OMD symptoms, while
he testified that he has not received any such treatment. . . .
(Tr. 16.) The ALJ concluded that, other than Mr. Banegas’s obstructive sleep apnea, the medical
record evidence revealed no work related functions limitation based on his non-severe
impairments and it appeared that “they have all resolved, are managed with treatment, were
diagnosed by a non-acceptable medical source or they do not meet the durational requirements.”
(Id.) The ALJ made no other findings in his determination regarding Mr. Banegas’s OMD or
related symptoms.
The relevant medical evidence reveals that on May 1, 2013, Mr. Banegas presented to
Dr. Javed Iqbal of Neurology Associates of Mesilla Valley, PC, with symptoms of droopy eyes,
difficulty swallowing, and weakness in his upper and lower extremities. (Tr. 394-95.) Dr. Iqbal
noted that Mr. Banegas had been previously evaluated in his office and diagnosed with OMD.
(Id.) Mr. Banegas complained that his symptoms were gradually worsening. (Tr. 394.) On
physical exam, Dr. Iqbal noted, inter alia, that Mr. Banegas had bilateral ptosis (drooping
eyelids) and mild proximal weakness in his upper and lower extremities. (Tr. 395.) Dr. Iqbal
indicated that OMD was a “progress of muscular dystrophy,” and that there was no specific
treatment. (Id.) He further indicated that Mr. Banegas could undergo surgery for his eyelids,

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could undergo esophageal dilatation for his swallowing problems, and could try physical therapy
for his leg and arm weakness. (Id.) Dr. Iqbal instructed Mr. Banegas to return as needed. (Id.)
On December 11, 2015, Mr. Banegas testified at the administrative hearing regarding his
OMD. (Tr. 66-72.) When questioned about his right shoulder, Mr. Banegas described a greater
loss of function with his right arm due to his right shoulder rotator cuff tear, i.e., his ability to lift
and reach, but testified that he had a significant amount of loss of strength in both arms due to
muscular dystrophy. (Tr. 66-67.) He also testified that while the degenerative arthritis in his
right knee causes pain and impacts his ability to walk, he had loss of strength in both legs due to
muscular dystrophy. (Tr. 68-69.) He testified that he used a cane for approximately three years
to stabilize himself on uneven ground and to have something to hold onto until he could sit down
in the event his legs started to give out. (Tr. 69, 71.) Finally, Mr. Banegas testified that his
condition had caused his eyelids to fall quite a bit, narrowing his eyes and making it more
difficult to see someone standing in front of him and affecting his peripheral vision. (Tr. 70.)
Mr. Banegas testified he intended to seek surgery for his drooping eyelids. (Id.)
In determining a claimant’s RFC, the ALJ should first assess the nature and extent of the
claimant’s physical and mental limitations. 20 C.F.R. §§ 404.1545(b) and (c). The ALJ is
required to consider all of the claimant’s impairments, including impairments that are not severe.
See 20 C.F.R. §§ 404.1545(a)(2); see also Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “[T]he ALJ must make specific findings,” Winfrey v. Chater, 92 F.3d 1017, 1023 (10th
Cir. 1996), that are “supported by substantial evidence.” Haddock v. Apfel, 196 F.3d 1084, 1088
(10th Cir. 1999).

Most importantly, the ALJ’s “RFC assessment must include a narrative

discussion describing how the evidence supports each conclusion, citing specific medical facts
. . . and nonmedical evidence. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (quoting

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SSR 96-8p, 1996 WL 374184, at *7). Additionally, an ALJ must give careful consideration to
any available information about symptoms because they sometimes suggest a greater severity of
impairment than can be shown by objective medical evidence. SSR 95-5p, 1995 WL 670415, at
*1.
The ALJ improperly relied on his step two findings as a substitute for an adequate RFC
analysis. Wells, 727 F.3d at 1071 (citing 20 C.F.R. § 404.1545(a)(2)). The regulations require
more. Id. An ALJ is required to consider the combined effect of all the claimant’s impairments,
including those that are non-severe, in assessing his RFC. Langley, 373 F.3d at 1124. Here, the
ALJ did not discuss Dr. Iqbal’s record, did not make any specific findings regarding
Mr. Banegas’s OMD and related symptoms, and did not include any limitations based on
Mr. Banegas’s extremity weakness or bilateral ptosis. Further, the ALJ’s explanation at step two
for excluding Mr. Banegas’s OMD related symptoms in his RFC assessment is not supported by
substantial evidence. The ALJ stated that the medical evidence of record revealed no work
related functional limitations from any of the other non-severe impairments because they had
either resolved, were managed with treatment, were diagnosed only by a non-acceptable medical
source, or did not meet the durational requirement. (Tr. 16.) Here, Dr. Iqbal, an acceptable
medical source, diagnosed Mr. Banegas’s OMD, described it as progressive, and indicated there
was no specific treatment for it. As such it was not resolved nor was it being managed with
treatment. Additionally, this impairment met the durational requirement having been diagnosed
sometime prior to May 1, 2013.4 (Tr. 394-95.) Thus, the ALJ’s step two explanation as to
Mr. Banegas’s OMD is not supported by substantial evidence. Moreover, the step two findings

4

See 20 C.F.R. § 404.1505 (a) (explaining that the law defines disability as the inability to do 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 not less than 12 months).

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are not an adequate substitute for considering the effects of Mr. Banegas’s OMD and related
symptoms on his ability to do work-related physical activities.
The Commissioner’s arguments that the ALJ did not err in his RFC assessment are
unavailing. The Commissioner first argues that the ALJ properly discounted Mr. Banegas’s
complaints related to his OMD because he had not received any treatment for it or the symptoms
he alleged resulted from it. (Doc. 22 at 9-10.) Setting aside that the ALJ noted this at step two in
finding this impairment was non-severe, the ALJ nonetheless failed to explain precisely what
treatment Mr. Banegas had not received given Dr. Iqbal’s note that there was no specific
treatment for OMD.

(Tr. 395.)

Additionally, Dr. Iqbal’s indications regarding what

Mr. Banegas could do to address his OMD related symptoms did not rise to the level of
prescribed treatment that Mr. Banegas failed to follow. As such, it would be error for the ALJ to
discount Mr. Banegas’s subjective reports on that basis. See Thompson v. Sullivan, 987 F.2d
1482, 1490 (10th Cir. 1993) (explaining there are certain factors that must be considered before
an ALJ may rely on a claimant’s failure to pursue treatment or take medication as support for his
determination of noncredibility).
The Commissioner next argues that the record did not support any specific limitations
arising from OMD that should have been incorporated in the RFC. (Doc. 22 at 11.) The
Administrative Record, however, does not contain a functional assessment prepared by any
treating physician or consultative examiner that evaluated Mr. Banegas’s specific limitations to
do work-related physical activities based on any of his severe and non-severe impairments.5
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The ALJ relied on the RFC assessments of nonexamining State agency medical consultants. (Tr. 20, 21.) On
May 14, 2013, Mr. Banegas’s treating orthopedic surgeon, Daniel Romanelli, M.D., suggested doing a functional
capacity evaluation “to see what he can do and what he cannot do and see if we need to give him permanent
restrictions, which more than likely is probably going to be the case.” (Tr. 356.) (Emphasis added.) On September
7, 2013, Mr. Banegas reported to the Administration that at his last visit with Dr. Romanelli on July 12, 2013, he
was given permanent job restrictions to include no excessive walking/standing, no bending or squatting or kneeling,
no ladder or pole or stair climbing, no pushing or pulling over 15-20 lbs., and no lifting. (Tr. 246.) The last record

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Further, it is undisputed that Mr. Banegas was diagnosed with OMD and experienced related
symptoms; i.e., weakness in his upper and lower extremities and bilateral ptosis. (Tr. 394-95.)
As such, the ALJ was required in assessing Mr. Banegas’s RFC to consider its effect on
Mr. Banegas’s ability to do work related activities and to give careful consideration to any
available information about a claimant’s symptoms because they sometimes suggest a greater
severity of impairment than can be shown by objective medical evidence. The ALJ failed to do
so. Langley, 373 F.3d at 1124, SSR 95-5p, 1995 WL 670415, at *1; see also 96-8p, 1996 WL
374184, at *5 (explaining that while a non-severe impairment standing alone may not
significantly limit an individual’s ability to do basic work activity, it may – when considered
with limitations or restrictions due to other impairments – be critical to the outcome of a claim).
Finally, the Commissioner argues that the ALJ had already deemed Mr. Banegas’s
subjective reports regarding his limitations to be less than reliable because of his activities of
daily living. (Doc. 22 at 8-9, 11.) An adverse credibility finding does not excuse the ALJ’s
failure to consider Mr. Banegas’s OMD related symptoms in the first instance. See Thompson v.
Sullivan, 987 F.2d 1482, 1488-91 (describing three-part inquiry for evaluating impairment
related subjective complaints and factors to be considered in determining credibility). That aside
and being mindful that deference to the fact-finder’s assessment of credibility is the general rule,
the Court is not persuaded that the ALJ’s credibility determination based on Mr. Banegas’s daily
activities was closely and affirmatively linked to the evidence. Wilson, 602 F.3d at 1144
(quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation omitted)). Here,
the ALJ concluded that Mr. Banegas reported a “high level of completion for activities of daily
living which was confirmed by his wife’s report.” (Tr. 21.) Elsewhere the ALJ stated that

from Dr. Romanelli in the Administrative Record is dated May 14, 2013. As such, there is no evidence in the
Administrative Record to substantiate Mr. Banegas’s representations regarding Dr. Romanelli’s assessment.

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Mr. Banegas’s wife reported that Mr. Banegas’s daily routine included feeding livestock and
pets, preparing meals, doing light household chores, watering outside plants, doing laundry,
driving a vehicle and shopping for necessities.

(Tr. 18.)

The ALJ further stated that

Mr. Banegas confirmed these activities, but also reported that he often had to sit between
activities to rest. (Id.)

The ALJ, however, failed to note the specific facts of Mr. Banegas’s

reported daily activities. For example, Mr. Banegas reported that he gets dressed, takes 800 mg.
of pain reliever, and walks 80 yards to his goat pen where he feeds his goats. (Tr. 236.) He
reported that his wife, dad, son or daughter will sometimes help him with doing this chore. (Tr.
228, 237.) When he is finished feeding his goats, he sits on a bench to rest for about 20 minutes.
(Id.) When he returns home he sits for another 15 minutes before he begins various household
chores that may include watering trees and potted plants, sweeping floors in two rooms, or
washing a small load of clothes. (Tr. 229, 236, 238.) Each of these chores are done only once or
twice each week. (Id.) Mr. Banegas reported he sits in a folding chair when he waters the trees.
(Id.) Mr. Banegas reported his cooking is limited to preparing sandwiches or warming up frozen
prepared meals which he does once or twice each week. (Tr. 229, 238.) Mr. Banegas is able to
shop for groceries one time per week. (Tr. 230, 239.) Mr. Banegas drives to his parents and/or
in-laws home one to three times per week to visit with them. (Tr. 240.) He attends church one
time per week. (Id.) Thus, when considered in more detail, Mr. Banegas’s daily activities are
consistent with his claims of physical limitations related to his severe and non-severe
impairments. See Krauser v. Astrue, 638 F.3d 1324, 1333 (10th Cir. 2011) (finding that the
specific facts of claimant’s daily activities painted a very different picture than the generalities
relied upon by the ALJ to find claimant incredible); see also Frey v. Bowen, 816 F.2d 508, 51617 (10th Cir. 1987) (findings that sporadic performance of daily activities is not inconsistent with

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complaints of disabling pain and does not establish that a person is capable of engaging in
substantial gainful activity); Thompson, 987 F.2d at 1490 (explaining that an ALJ must keep in
mind that the sporadic performance of household tasks or work does not establish that a person is
capable of engaging in substantial gainful activity).
For the foregoing reasons, the Court finds that the ALJ failed to apply the correct legal
standard in determining Mr. Banegas’s RFC because he failed to consider the effects of
Mr. Banegas’s non-severe impairment of OMD and related symptoms on his ability to do workrelated activities. This is reversible error. Wilson, 602 F.3d at 1140. Additionally, the Court is
not persuaded that the ALJ’s error is harmless. Here, Mr. Banegas is of advanced age.6 20
C.F.R. § 404.1563(e). As such, there must be very little, if any, vocational adjustment required
to find a transferability of skills. 20 C.F.R. § 404.1568(d)(4). Here, the VE testified that if
Mr. Banegas required more frequent breaks during the work day, or was limited to lifting and
carrying of only 10 pounds, that he would not be able to perform his past work. (Tr. 78-79.) As
such, the error is not harmless. Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (the
Court finds harmless error only when it can “confidently say that no reasonable administrative
factfinder, following the correct analysis, could have resolved the factual matter in any other
way”).
B.

Remaining Issues

The Court will not address Mr. Banegas’s remaining claims of error because they may be
affected by the ALJ’s treatment of this case on remand. Wilson v. Barnhart, 350 F.3d 1297,
1299 (10th Cir. 2003).

6

Mr. Banegas was fifty-six years old on his alleged onset date. He was sixty-one years old at the time of the ALJ’s
determination.

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IV. Conclusion
For the reasons stated above, Mr. Banegas’s Motion to Reverse and Remand for
Rehearing (Doc. 20) is GRANTED.

_____________________________________
KIRTAN KHALSA
United States Magistrate Judge,
Presiding by Consent

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