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Etcitty v. Saul

United States District Court, D. New Mexico

July 31, 2019

CHRISTINE R. ETCITTY, Plaintiff,
v.
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA, CHIEF UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff Christine R. Etcitty's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (the “Motion”), (Doc. 18), filed May 6, 2019; Defendant Commissioner Andrew Saul's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision (the “Response”), (Doc. 20), filed July 5, 2019; and Ms. Etcitty's Reply in Support of Motion to Reverse and Remand for a Rehearing with Supporting Memorandum, (the “Reply”), (Doc. 21), filed July 16, 2019.

         Ms. Etcitty filed applications for disability insurance benefits and supplemental security income on June 22, 2012. (Administrative Record “AR” 77, 183, 185). In both of her applications, Ms. Etcitty alleged disability beginning June 1, 2012. (AR 183, 185). Ms. Etcitty claimed she was limited in her ability to work due to: carpal tunnel; asthma; diabetes; complete hearing loss in her right ear; vertigo; obesity; tinnitus; and sleep apnea. (AR 225).

         Ms. Etcitty's applications were denied initially on October 10, 2012 and upon reconsideration on July 15, 2013. (AR 116, 120, 124). Ms. Etcitty requested a hearing before an Administrative Law Judge (“ALJ”), (AR 133), which was held on November 6, 2014 before ALJ John Morris. (AR 32). Ms. Etcitty and Thomas Greiner, an impartial vocational expert (“VE”), testified at the hearing and Ms. Etcitty was represented by attorney Ione Gutierrez. (AR 32).

         On March 19, 2015 ALJ Morris issued his decision, finding Ms. Etcitty not disabled at any time between her initial filing date, June 22, 2012, through the date of his decision. (AR 26). Ms. Etcitty requested review by the Appeals Council, (AR 1), which was denied, (AR 1-4), making ALJ Morris' opinion the Commissioner's final decision for purposes of judicial review.

         On November 17, 2016, Ms. Etcitty filed a complaint in the United States District Court for the District of New Mexico requesting review of ALJ Morris' decision. (AR 847). The Commissioner did not oppose Ms. Etcitty's motion and the Court remanded the case for further administrative proceedings. (AR 851-53). On remand, the Appeals Council explained that ALJ Morris failed to provide an explanation with specific references to evidence in the record in support of Ms. Etcitty's assigned residual functional capacity (“RFC”). (AR 856-57). The Appeals Council therefore instructed the ALJ to further evaluate Ms. Etcitty's RFC and provide evidentiary support for the conclusions reached. Id.

         On August 13, 2018, Ms. Etcitty appeared before ALJ Lillian Richter with attorney Laura Johnson and non-partial VE Sandra Vibbert. (AR 773). ALJ Richter issued her decision on October 3, 2018, finding Ms. Etcitty not disabled prior to March 22, 2017. (AR 761). Ms. Etcitty then requested review by the Appeals Council, which was denied, making ALJ Richter's opinion the Commissioner's final decision for purposes of this appeal.

         Ms. Etcitty, who is now represented by attorney Michael Armstrong, argues in her Motion that: (1) ALJ Richter's RFC findings conflict with the job of “document scanner” under the Dictionary of Occupational Titles (“DOT”); (2) the DOT number for the job of production worker “does not correspond to that job title;” and (3) ALJ Richter “failed to conduct the review required in Trimiar for cases with [a] borderline number of jobs in the national economy.” (Doc. 18 at 2). The Court has reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has meticulously reviewed the administrative record. Because ALJ Richter erred in relying on VE Vibbert's testimony without first eliciting an explanation for the discrepancies with the DOT, the Court finds that Ms. Etcitty's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum, (Doc. 18), should be GRANTED and this case REMANDED for proceedings consistent with this opinion.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's “failure to apply the correct legal standards, or to show . . . that she has done so, are also grounds for reversal.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for the Commissioner's. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which is generally the ALJ's decision, rather than the Appeals Council's denial of review. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ's decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. While the Court may not re-weigh the evidence or try the issues de novo, its examination of the record must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         For purposes of supplemental security income and disability insurance benefits, a claimant establishes a disability when 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) (2015), 42 U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In order to determine whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920 (2012).

         At the first four steps of the SEP, the claimant bears the burden of showing: (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 either (3) his impairment(s) meet or equal one of the “listings”[1] of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation process. At step five, the Commissioner bears the burden of ...


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