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Buus v. Colvin

United States District Court, D. South Dakota

May 18, 2015

JESSICA S. BUUS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration; Defendant.


KAREN E. SCHREIER, District Judge.

Plaintiff, Jessica S. Buus, seeks review of the decision of the Commissioner of the Social Security Administration denying her claim for disability insurance benefits (SSDI) under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income (SSI) under Title XVI of that Act, 42 U.S.C. § 1382.[1] The Commissioner opposes the motion and moves the court to affirm the denial. For the following reasons, the court affirms the decision of the Commissioner.


Buus applied for SSDI and SSI on October 21, 2011, alleging disability since March 1, 2011. AR 178, 180, 216, 235.[2] The Social Security Administration (SSA) denied Buus's applications initially on January 24, 2012, and again upon reconsideration on July 6, 2012. AR 72, 82, 124, 127. Buus then requested an administrative hearing and appeared with counsel before Administrative Law Judge Denzel R. Busick (ALJ) on April 3, 2013. See AR 32-71 (transcript of hearing). Thereafter, the ALJ issued an unfavorable decision finding that Buus retained the residual functional capacity (RFC) to perform light work within certain parameters. AR 17. Accordingly, the ALJ denied Buus's claims, concluding a significant number of jobs existed that Buus could perform. AR 25. Buus timely appealed the ALJ's decision and requested review by the Appeals Council, but such request was denied on March 7, 2014.[3] AR 1-4. On April 30, 2014, Buus commenced this action seeking judicial review of the Commissioner's denial of her claims. Docket 1.


Buus was born on June 27, 1983. AR 178. At the time of the hearing before the ALJ, Buus was 29 years old. AR 37. Buus graduated from high school in 2001 and completed one year of college in 2005. AR 37, AR 217. Buus reported working a number of jobs predominantly in the daycare, hotel, and customer services fields. AR 217, AR 269-73. Buus testified at the administrative hearing that, of those jobs, she principally and most recently worked as a daycare assistant. AR 38, AR 40. Her duties primarily dealt with taking care of young children. AR 38. Buus also testified that she was involved in a motorcycle accident in July 2010. AR 40. She explained that the timing of the accident coincided with the onset of most of the pain, fatigue, and other conditions that she reported in her application for SSDI and SSI. AR 40. Buus stated she had not worked since February 2011 due to illness and the worsening of her medical conditions. AR 40. At the time of the hearing, Buus was living with her mother and stepfather in Sioux Falls, South Dakota. AR 40.

I. Motorcycle Accident

On July 11, 2010, Buus was brought to the emergency room of the Sanford USD Medical Center following a motorcycle accident. AR 654. Buus was riding as a passenger without a helmet when a pickup truck pulled in front of the motorcycle. AR 654. The motorcycle collided with the truck and Buus was thrown over the top of the vehicle. AR 654. Buus hit her head on the ground and briefly lost consciousness before emergency medical service personnel arrived. AR 654-55.

At the emergency room, Buus reported pain in her head, left knee, and neck. AR 654. She received treatment from Dr. Robert Harms and several tests were performed. AR 655-58. A CT scan of her cervical spine revealed a mild disc bulge that, according to the doctor's notes, may or may not have been a result of the accident. AR 658. Buus was sent home to rest, and Dr. Harms prescribed hydrocodone for pain and Zofran for nausea. AR 659.

II. Back, Knee, and Neck Pain

Jessica came to see Dr. Todd Sorensen at the Sanford Family Medicine Clinic on July 19, 2010, for a follow up after her recent motorcycle accident. AR 334. Buus stated at the ALJ hearing that Dr. Sorensen is her primary care physician. AR 40. Buus complained to Dr. Sorensen of neck and knee pain, and Dr. Sorensen noted that Buus had suffered a neck injury as a result of the accident. AR 334-35. Dr. Sorensen recommended that Buus rest and apply ice packs to the injured areas, and he recommended that she start physical therapy. AR 334-35. Buus saw Dr. Sorensen again a few weeks later complaining of back pain as a result of the accident. AR 336.[4] Similarly, Dr. Sorensen recommended rest, ice, and physical therapy. AR 336.

Buus continued to follow up with Dr. Sorensen over the next several months, and Dr. Sorensen continued to recommend rest, ice, and physical therapy to combat Buus's pain. AR 339, 341, 343. In December 2010, however, Buus was discharged from Sanford Physical Therapy Solutions due to "[e]xcessive cancellations and no shows." AR 554. Prior to discharge, Buus had reported that she was feeling better and receiving relief from doing her exercises. AR 554. On March 22, 2011, Dr. Sorensen stated that Buus was doing well enough to do physical therapy at home and to schedule follow up appointments on an as needed basis. AR 352.

During this time, Dr. Sorensen referred Buus to the Sanford Orthopedics and Sports Medicine Clinic, where she met with Dr. Geoffrey Haft on September 21, 2010, to discuss her neck pain. AR. 305. Dr. Haft observed that Buus had a disc herniation in her neck, but that physical therapy and NSAIDs were helping. AR 305. Dr. Haft recommended Buus continue a conservative treatment regime and that a steroid injection be given to further alleviate her neck pain. AR 306. Buus met with Dr. Mary Harris at the Sanford USD Medical Center on October 30, 2010, complaining of neck pain and numbness. AR 561. Dr. Harris noted that Buus described her pain dramatically, but that she seemed fairly comfortable at the time of their visit. AR 563. Buus then returned to Dr. Haft on November 23, 2010, and stated that the injection helped relieve her neck pain for a couple of days. AR 299. Dr. Haft recommended physical therapy, anti-inflammatory drugs, and chiropractic treatment. AR 299. Additionally, Dr. Haft stated that he wanted to wait between nine to twelve months after the motorcycle accident before considering any surgical options. AR 299.

Buus was subsequently referred to Sanford Physical Medicine Rehabilitation Specialists, where she met with Dr. Troy Gust on November 7, 2011, to discuss her ongoing neck pain. AR 750. Dr. Gust ordered an EMG[5] and recommended that Buus return to her home exercise program. AR 751. Buus met with Dr. Thomas Boetel on November 15, 2011, to discuss the results of the EMG. AR 760. The EMG report was normal, although Buus continued to report neck pain. AR 760. Dr. Boetel recommended that Buus continue physical therapy. AR 761. Buus visited the Sanford USD Medical Center on December 21. 2011, for physical therapy, but she was discharged after calling to cancel her remaining sessions. AR 466.

For her knee pain, Buus met with Dr. Kristofer Kimber at the Sanford Orthopedics and Sports Medicine Institute on October 11, 2010. AR 301. Dr. Kimber noted that Buus was experiencing pain, but that she did not have any significant mechanical symptoms or swelling. AR 302. Dr. Kimber recommended physical therapy and prescribed the anti-inflammatory drug Mobic. AR 302. During a follow up in November, Buus was given a steroid injection in her knee. AR 300. An MRI was taken on January 21, 2011. AR 298. Following the MRI, Dr. Kimber recommended Buus continue physical therapy, and that Buus could return on an as needed basis. AR 297. On August 28, 2011, Buus received a corticosteroid injection in her right knee, which yielded immediate pain relief. AR 295. On September 22, 2011, Buus was discharged from receiving physical therapy for her right knee due to three successive no-shows. AR 475. According to the discharge summary, Buus had only attended her initial evaluation. AR 475. Buus appeared for an unscheduled follow up with Dr. Kimber on July 20, 2012. AR 849. Dr. Kimber continued to recommend non-operative treatment, and he recommended a rheumatology exam for possible arthritis. AR 849.

For her back pain, Buus saw Dr. Sorensen again on June 14, 2011. AR 362. Dr. Sorensen did not, however, adjust Buus's medication or recommend additional treatment beyond physical therapy. AR 365. Buus then saw Dr. Sorensen on July 18, 2011, complaining of similar pain symptoms. AR 366. A physical exam was conducted, which Dr. Sorensen noted as "generally normal." AR 367. Buus was then prescribed Percocet for pain. AR 367. Buus met with Barbara Belkham, a physician's assistant, on January 8, 2012, complaining of lower back pain. AR 786-87. Belkham recommended continued use of ice and stretching. AR 789.

III. Fibromyalgia

Reference to fibromyalgia[6] first appeared as a medical assessment following a visit with Dr. Sorensen on May 12, 2011. AR 357-58. When Buus arrived that day, she complained of fatigue and body aches. AR 357. Buus returned to see Dr. Sorensen on May 17, 2011, reporting symptoms of fatigue, aches, and muscle pain. AR 359. Dr. Sorensen again gave an assessment of fibromyalgia. AR 361. When Buus saw Dr. Sorensen in August 2011, she reported that had a history of fibromyalgia that was made worse following the motorcycle accident. AR 368. Following this appointment, Dr. Sorensen prescribed Elavil.[7] AR 369. Dr. Sorensen continued to see Buus for treatment of her fibromyalgia on several occasions, and he prescribed Neurontin[8] on January 27, 2012. See, e.g., AR 804, 814, 818.

After meeting with Dr. Kimber in July 2012 for her knee pain, Buus then met with Dr. Sheetal Sudhir Gavankar at the Sanford Rheumatology Clinic for an evaluation of inflammatory arthritis. AR 849, 862. A joint exam was performed, which showed "12/18 fibromyalgia tender points." AR 864. Dr. Gavankar suspected that the majority of Buus's body pain was related to fibromyalgia, and she recommended Cymbalta and aquatic therapy. AR 866. Dr. Sorensen prescribed Cymbalta[9] to Buus on August 28, 2012, after she returned for an evaluation of her depressive symptoms and complaining of fatigue. AR 917, 921. Buus saw Dr. Sorensen on November 5, 2012, complaining of fatigue and joint pain, and was prescribed Methotrexate.[10] AR 1010, 1015. Buus saw Dr. Sorensen again on December 17, 2012, for fatigue and joint pain. AR 1083. Buus had shown some improvement, and her Methotrexate prescription was increased. AR 1083, 1087.

IV. Headaches

Reference to ongoing headaches first appeared in Buus's medical records on April 15, 2011, when she met with Barbara Schlenker, a licensed nurse practitioner, and Lindsay Speer, a certified nurse practitioner, at the Sanford Family Medicine Clinic. AR 353. During that appointment, Buus complained of several other symptoms in addition to her headaches, and she stated that they had all persisted for several months. AR 353.

Buus came to the Sanford USD Medical Clinic emergency room on May 27, 2011, complaining of a strong headache. AR 487. She was seen by Dr. Beth Lapka. AR 487. Accompanying her headache, Buus complained of light sensitivity and nausea. AR 487. Buus was given Reglan[11] and Benadryl, and Dr. Lapka's notes indicate that Buus's headache improved. AR 489. Dr. Lapka's notes also state, however, that Buus reported she did not have a history of frequent headaches at this time. AR 489.

Buus met with Dr. Sorensen on October 11, 2011, complaining of recurring headaches that arose between four and five times per week. AR 370. Dr. Sorensen prescribed verapamil, [12] and asked her to keep a headache diary. AR 373. Dr. Sorensen also recommended that Buus continue a prophylactic therapy regime by taking beta blockers and to lie in a dark room while applying cold packs for pain relief if a headache occurred. AR 373.

V. Depression and Anxiety

Buus has a history of depression and anxiety that predates her motorcycle accident. On March 14, 2010, Buus met with Barb Belkham and complained of a depressed mood and anxiety. AR 318.[13] Belkham's notes indicate that Buus previously received treatment, but had not received counselling for her condition. AR 318. Belkham recommended that Buus's Zoloft[14] dosage be increased, that Abilify[15] would be added, and that counseling should be pursued. AR 320.

Buus met with Dr. Sorensen on September 1, 2010, for one of her follow up appointments after the motorcycle accident. In addition to pain, she reported experiencing anxiety while riding in a car. AR 339. On April 15, 2011, Buus met with Barbara Schlenker and Lindsay Speer. AR 353. According to Schlenker, Buus reported that she was feeling anxiety and trouble concentrating. AR 353. Speer noted that Buus said she had been dealing with depression since high school. AR 353. Speer concluded that Buus's Zoloft dosage should be increased, and she also recommended Abilify. AR 354. Buus met with Dr. Sorensen again on May 12, 2011, for an evaluation of her depression symptoms. AR 357. Dr. Sorensen indicated that Buus was not tolerating the increased Zoloft dosage, so she was reverted back to earlier levels. AR 357. Counseling was again advised, and Triazolam was added to combat sleeping difficulties. AR 358. Buus revisited Dr. Sorensen on several later occasions to evaluate her depressive symptoms. AR 362, 366, 814, 917, 1007, 1083. Buus's medication was eventually adjusted to include other medicines such as Elavil and Cymbalta, although those medications were also a part of her fibromyalgia treatment. AR 369, 921.

Buus sought counseling and therapy related to her depression from the Marriage & Family Therapy Clinic on November 1, 2011. AR 748. Her intake assessment includes Buus's belief that her anxiety worsened after the motorcycle accident, and that she had since become more isolated. AR 748. The record also contains notes from five treatment sessions at the clinic. AR 744-47. According to the summaries in those records, the sessions primarily focused on relaxation techniques to help alleviate anxiety and pain. AR 744-47, AR 749.

VI. Eye Condition

Reference to Buus's vision problems first appear in her medical records following a visit with Dr. Carol Byrd at the Sanford Eye Center on January 25, 2013. AR 902. Buus reported an "onset of floaters in the last month." AR 902. Buus then saw Dr. Michael Vanden Bosch on February 5, 2013, who diagnosed Buus's condition as pars planitis of the right eye.[16] AR 903. Dr. Vanden Bosch prescribed steroid eye drops and instructed Buus to return in approximately two weeks. AR 903. Buus returned on February 19, 2013, and Dr. Vanden Bosch's notes indicate the condition was "stable" at that time. AR 904. Dr. Vanden Bosch made a similar notation during Buus's March 20, 2013, appointment, although he also noted the possible presence of more cells. AR 905.


On April 16, 2013, the ALJ issued a decision denying Buus's application for benefits. AR 13-26. In doing so, the ALJ used the sequential five-step evaluation process.[17] At step one, the ALJ determined that Buus had not engaged in substantial gainful activity since March 1, 2011. AR 15. At step two, the ALJ found that Buus was suffering from several severe impairments, namely: fibromyalgia, headaches, degenerative disc disease of the cervical and lumbar spine, obesity, depression, and anxiety. AR 15. The ALJ further determined, however, that Buus's vision problems did not qualify as a severe impairment. AR 15. At step three, the ALJ determined that Buus did not have an impairment or combination of impairments that met or medically equaled a listed impairment. AR 15-18. At step four, the ALJ found that Buus had the RFC to perform light work within certain parameters. AR 18. Based on this RFC determination, the ALJ concluded that Buus could not perform any past relevant work. AR 24. At the fifth and final step, the ALJ considered testimony of a ...

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