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Depuy v. Colvin

United States District Court, District of Nebraska

November 4, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security; Defendant

For Heather Depuy, Plaintiff: Jenna R. Kessell, CAVANAUGH LAW FIRM, Omaha, NE.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Robert L. Homan, U.S. ATTORNEY'S OFFICE - OMAHA, Omaha, NE.

For Office of General Counsel Social Security Administration, Interested Party: Office of General Counsel Social Security Administ, SOCIAL SECURITY ADMINISTRATION - KANSAS CITY, Kansas City, MO.


Cheryl R. Zwart, United States Magistrate Judge.

Plaintiff Heather Depuy (" Depuy"), seeks review of a decision by the defendant denying her application for disability benefits under Title II of the Social Security Act (" Act"), 42 U.S.C. § § 401 et seq. After carefully reviewing the record, the court finds the case should be remanded.


Depuy applied for social security disability benefits on January 14, 2011, claiming an onset date of August 1, 2008. (Social Security Transcript (" TR") at 243-44). Her application was denied at the initial and reconsideration levels. A hearing was held before an Administrative Law Judge (" ALJ") and on July 17, 2012, Depuy received a fully favorable decision awarding her benefits from the onset of disability -- August 1, 2008. (TR. 111-112). The Appeals Council gave notice of review of the decision and on December 11, 2012, issued an order of remand to the same AJL. (TR 123-29).

The ALJ conducted a second hearing and on May 1, 2013, issued a decision finding Depuy was not entitled to a disability award. Depuy appealed the decision and the Appeals Council denied the request for review on November 15, 2013. In response, Depuy filed the action now before the court.


The ALJ evaluated Depuy's claims through all five steps of the sequential analysis prescribed by 20 C.F.R. 404.1520 and 416.920. (T.R. 14-28). As reflected in her decision, the ALJ made the following findings:

1. The claimant last met the insured status requirements of the Social Security Act on March 31, 2009.

2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of August 1, 2008, through her last insured date of March 31, 2009 (20 CFR 404.1571 et seq.).

3. Through the date last insured, the claimant had the following severe impairments: a history including a motor vehicle accident at age 17 and a fracture of the lumbar spine (20 CFR 404.1520(c)).

4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, through the date last insured, the claimant had the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b).

6. Through the date last insured, the claimant was capable of performing past relevant work as a receptionist, DOT 352.667-010, semi-skilled, light; general office clerk, DOT 219.362-010, semi-skilled, light; and front desk clerk, DOT 238.367-038, semi-skilled, light. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).

7. The claimant was not under a disability, as defined in the Social Security Act, at any time from August 1, 2008, the alleged onset date, through March 31, 2009, the date last insured (20 CFR 404.1520(a)(1)).

TR. 12-22.


Depuy's complaint requests judicial review of the ALJ's decision. She raises the following arguments in support of her claim for reversal.

1) The ALJ gave improper weight to the opinion of the medical expert who testified at the hearing before the ALJ.

2) The ALJ did not give proper consideration to Depuy's reported limitations in her daily activities.

3) The ALJ failed to address the opinion of one of Depuy's treating physicians -- Dr. Alan Williamson.


In 1994, Depuy was involved in a car accident resulting in a sustained spinal cord injury and a fractured pelvis and hip. As a result of the car accident, she underwent spinal and pelvic reconstructive surgery. She returned to work at that time, but alleges her condition deteriorated over time and her increased pain level made it impossible for her to return to work fulltime by 2004. At that time, her husband was on active duty in the United States Air Force and was stationed in Japan. Depuy and their children lived in Japan with her husband. In Japan, she received treatment for trochanteric bursitis and chronic low back pain. (TR. 558-59).

Depuy underwent a physical therapy evaluation with Bradley Kime on September 22, 2004, due to her complaints of low back pain. (TR. 558). She described her pain as " constant dull pain localized at lumbar spine with intermittent sharp pain at sacrum . . . ." (TR. 558). She further stated that bending aggravated her pain while sitting properly alleviated it. (TR. 558). Depuy reported her pain as 9 out of 10. (TR. 558). Kime implemented a treatment plan that involved pool exercises, a continued cardiovascular exercise program for 20 minutes a day, and a lumbar spine stabilization program. (TR. 558).

During this time period, Depuy was also being treated for post-partum depression. (TR. 555). She was taking anti-depression medication and, as part of her care plan, indicated she wanted to take time every day for exercise. (TR. 555).

On September 26, 2006, Depuy sought treatment for her chronic pain from Dr. Wanker. (TR. 519). She reported pelvic and low back pain at 1 out of 10. Yet, she also described her lower back pain as " chronic" and " unrelenting." (TR. 519). A motor examination revealed no dysfunction and she had normal flexion and extension of her knees and ankles. (TR. 521). However, the lower back pain was " elicited by motion . . . [and] flexion. (TR. 521). Her " lumbosacral spine motion was normal." (TR. 521). Depuy complained of difficulty climbing stairs and a treating physician at that time ...

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