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Bucy v. Colvin

United States District Court, Tenth Circuit

September 24, 2013

DANIEL R. BUCY, Plaintiff,
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


Kathryn H. Vratil, United States District Judge

Daniel R. Bucy appeals the final decision of the Commissioner of Social Security to deny disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. For reasons set forth below, the Court finds that the final decision of the Commissioner should be reversed and remanded for further proceedings.

I. Procedural Background

On April 18, 2007, plaintiff applied for disability benefits, alleging disability since February 2, 2007. The agency denied plaintiff’s application initially and upon reconsideration. Plaintiff requested a hearing. On November 4, 2008, plaintiff appeared with counsel at the hearing before Administrative Law Judge (“ALJ”) Alison Brookings. On January 8, 2009, ALJ Brookings found that plaintiff was able to perform jobs that exist in the economy and therefore was not disabled within the meaning of the Act. Doc. #6-2 at 14-26. On May 19, 2009, the Appeals Council of the Social Security Administration denied plaintiff’s request for review. Doc. #6-2 at 2-5. Plaintiff then filed a civil action in the United States District Court for the District of Kansas challenging the ALJ decision. Bucy v. Astrue, No. 09-1223-SAC.

On August 18, 2010, U.S. District Judge Sam A. Crow remanded the case to the Commissioner for further consideration. Doc. #6-10. Judge Crow found that the ALJ had not properly considered the opinion of treating physician Dr. Paul Davis that plaintiff was disabled. Judge Crow also found that although the Appeals Council considered a letter from Dr. Davis which plaintiff submitted after the ALJ decision, the Council clearly erred by ignoring the medical opinions of Dr. Davis contained in his treatment notes. Doc. # 6-10 at 15.

On September 12, 2011, following a new hearing, ALJ James Harty rendered a new decision and found that plaintiff was not under a “disability” as defined in the Act. Doc. #6-9 at 10-21.

II. Facts

The following is a brief summary of the facts presented to the ALJ.

A. Plaintiff’s Testimony

At an administrative hearing on August 23, 2011, plaintiff testified as follows:[2]In February of 2007, plaintiff injured his right shoulder while performing his job as a sheet metal worker. After plaintiff had surgery to repair his right shoulder, he did not have the physical strength to do sheet metal work. Plaintiff did not do any work for compensation until after his hearing in 2009. At that point, he did some basement remodeling for a few weeks (hanging sheetrock and painting). He could not continue because of pain and swelling in his shoulders.[3] Tr. 370-72. Plaintiff currently spends a few hours a day, three days a week, supervising remodeling of a rental property. He sometimes drives one to two hours per day to obtain material for the remodeling job. Tr. 375. Plaintiff mows his own lawn and until recently, he mowed a lawn at a rental property, but he can no longer lift the mower in and out of his truck. Tr. 373-74.

Plaintiff prepares meals for himself and his wife. Tr. 385, 390. He washes dishes, but his shoulders and back “get tight” after about 15 minutes. He then takes a 30 minute break to rest his arms and shoulders. Due to tremors, plaintiff has difficulty writing. During religious meetings, however, he writes more than two pages of notes in 30 to 45 minutes. Tr. 379-380.

Plaintiff becomes fatigued in the afternoon, which he attributes to primidone, which he takes for tremors. He naps for about three hours perhaps twice a week. Tr. 382. He can only stand or walk for a total of two hours a day. Tr. 386. He can not lift anything heavier than five pounds because it hurts his back and “wears out” his arms. Id.

Plaintiff enjoys walking for recreation; on a “good day” he can walk up to five miles in two hours. The next day, however, he might be unable to walk at all. Tr. 384-85.

In October of 2010, plaintiff went on a 10-day hunting trip to Wyoming. He did not hunt, but he cooked for seven or eight other men and slept on the ground in a tent. Tr. 395-397.

B. Medical Evidence

In February of 2007, plaintiff saw Dr. Davis, his family physician, complaining of right shoulder pain after a fall. Tr. 260. Dr. Davis recommended anti-inflammatory medication. Tr. 260. About two weeks later, plaintiff visited Bernard F. Hearon, M.D., an orthopedist. X-rays of plaintiff’s right shoulder showed no abnormalities. Tr. 275. Dr. Hearon recommended over-the-counter pain relievers and physical therapy. Tr. 268, ...

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