Buus v. Colvin
Filing
15
MEMORANDUM OPINION AND ORDER affirming the decision of Commissioner. Signed by U.S. District Judge Karen E. Schreier on 5/18/2015. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JESSICA S. BUUS,
4:14-CV-04066-KES
Plaintiff,
MEMORANDUM OPINION AND
ORDER AFFIRMING THE DECISION
OF COMMISSIONER
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration;
Defendant.
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.
PROCEDURAL HISTORY
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
Although Buus’s complaint and reply brief correctly names Carolyn W.
Colvin as the defendant, Buus’s initial brief mistakenly names Michael J.
Astrue as the defendant in the caption. Colvin became the Acting
Commissioner of the Social Security Administration on February 14, 2013.
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record.
All citations to “AR” refer to the appropriate page of the administrative
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 3271 (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 14. On April 30, 2014, Buus commenced this action seeking judicial review of
the Commissioner’s denial of her claims. Docket 1.
FACTUAL BACKGROUND
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
Because the Appeals Council denied Buus’s request for review, the
ALJ’s decision represents the final decision of the Commissioner for purposes
of judicial review. 42 U.S.C. § 405(g).
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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.
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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
The date of this visit is unclear. The timestamp that accompanies
Dr. Sorensen’s notes indicates that his notes were entered on “3/16/2011,”
which would be eight months after the motorcycle accident. AR 336.
Nonetheless, Dr. Sorensen’s note states that onset of the Buus’s back pain was
“3 weeks ago,” and that the mechanism of the injury was the motor vehicle
accident that occurred on July 10, 2010. AR 336.
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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 EMG5
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
An EMG or “Electromyography” examination is “[t]he recording of
electrical activity generated in muscle for diagnostic purposes[.]” Stedman’s
Medical Dictionary 622 (28th ed. 2006).
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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 noshows. 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
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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 fibromyalgia6 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
“Fibromyalgia” is defined as “[a] common syndrome of chronic
widespread soft-tissue pain accompanied by weakness, fatigue, and sleep
disturbances; the cause is unknown.” Stedman’s Medical Dictionary, 725 (28th
ed. 2006).
6
Elavil is an antidepressant. See Drugs.com, http://www.drugs.com/
elavil.html (last visited May 15, 2015). This medication was also prescribed for
Buus’s depression. AR 369.
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of her fibromyalgia on several occasions, and he prescribed Neurontin8 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 Cymbalta9 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.
Neurontin is an anti-epileptic medication that can also be prescribed
for pain. Drugs.com, http://www.drugs.com/neurontin.html (last visited
May 13, 2015).
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“Cymbalta . . . is a selective serotonin and norepinephrine reuptake
inhibitor antidepressant (SSNRI)” which can also be prescribed for adults with
fibromyalgia. Drugs.com, http://www.drugs.com/cymbalta.html (last visited
May 13, 2015).
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“Methotrexate interferes with the growth of certain cells of the body,”
and is used to treat certain types of cancer as well as psoriasis and symptoms
of arthritis. Drugs.com, http://www.drugs.com/methotrexate.html (last visited
May 13, 2015).
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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 Reglan11 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
“Reglan . . . increases muscle contractions in the upper digestive tract”
and is typically used to treat heartburn. Drugs.com, http://www.drugs.com
/reglan.html (last visited May 13, 2015).
11
“Verapamil is a calcium channel blocker” that relaxes muscles of the
heart and blood vessels. Drugs.com, http://www.drugs.com/verapamil.html
(last visited May 13, 2015).
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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
Zoloft14 dosage be increased, that Abilify15 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
The medical records from this visit include a Past Medical History
section and a bullet point entry that references “Depression, anxiety” attributed
to March 23, 2007. AR 319.
13
Zoloft is an antidepressant that is used to treat depression, anxiety,
and several other disorders. Drugs.com, http://www.drugs.com/zoloft.html
(last visited May 13, 2015).
14
Abilify is an antipsychotic medication that is often used in
combination with other medicines to combat depression in adults. Drugs.com,
http://www.drugs.com/abilify.html (last visited May 13, 2015).
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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
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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.
ALJ DECISION
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
Pars planitis “is an immunological disorder of the eye characterized by
inflammation of a part of the uvea, the layer of tissue between the sclera and
the retina, [and/or] the membranes protecting the eyeball.” WebMD,
http://www.webmd.com/a-to-z-guides/pars-planitis (last visited on May 13,
2015).
16
An ALJ must follow “ ‘the familiar five-step process’ ” to determine
whether an individual is disabled. Martise v. Astrue, 641 F.3d 909, 921 (8th
Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)). 20
C.F.R. § 404.1520(a)(4)(i)-(v) provides that “(i) [a]t the first step, we consider
your work activity, if any. If you are doing substantial gainful activity, we will
find that you are not disabled. . . . (ii) At the second step, we consider the
medical severity of your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the duration
requirement of § 404.1509, or a combination of impairments that is severe and
meets the duration requirement, we will find that you are not disabled. . . . (iii)
At the third step, we also consider the medical severity of your impairment(s). If
you have an impairment(s) that meets or equals one of our listings in appendix
1 of [subpart P of part 404 of this chapter] and meets the duration
requirement, we will find that you are disabled. . . . (iv) At the fourth step, we
consider our assessment of your residual functional capacity and your past
relevant work. If you can still do your past relevant work, we will find that you
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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 vocational expert and determined that Buus was capable of performing
other jobs that existed in significant numbers in the national economy. AR 2425. Accordingly, the ALJ found that Buus was not disabled and thus did not
qualify for benefits under the Social Security Act.
STANDARD OF REVIEW
The court must uphold the ALJ’s decision if it is supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings
of the Commissioner as to any fact, if supported by substantial evidence, shall
are not disabled. . . . (v) At the fifth and last step, we consider our assessment
of your residual functional capacity and your age, education, and work
experience to see if you can make an adjustment to other work. If you can
make an adjustment to other work, we will find that you are not disabled. If
you cannot make an adjustment to other work, we will find that you are
disabled.”
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be conclusive . . . .”); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011).
“Substantial evidence is ‘less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner's
conclusion.’ ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting
Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)). The court considers
evidence that both supports and detracts from the ALJ’s decision. Moore v.
Astrue, 623 F.3d 599, 605 (8th Cir. 2010). If the Commissioner’s decision is
supported by substantial evidence in the record as a whole, the court may not
reverse it merely because substantial evidence also exists in the record that
would support a contrary position or because the court would have determined
the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002)
(citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
In determining whether the Commissioner’s decision is supported by
substantial evidence in the record as a whole, the court reviews the entire
administrative record and considers six factors: (1) the ALJ’s credibility
determinations; (2) the claimant’s vocational factors; (3) medical evidence from
treating and consulting physicians; (4) the claimant’s subjective complaints
relating to activities and impairments; (5) any third-party corroboration of
claimant’s impairments; and (6) a vocational expert’s testimony based on
proper hypothetical questions setting forth the claimant’s impairment(s).
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
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The court also reviews the Commissioner’s decision to determine if an
error of law has been committed, which may be a procedural error, the use of
an erroneous legal standard, or an incorrect application of the law. Collins v.
Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commissioner’s construction
of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th
Cir. 2008)).
DISCUSSION
I.
Whether the ALJ Erred in Failing to Include Buus’s Eye Condition as
a Severe Impairment at Step Two of the Sequential Analysis
The ALJ concluded that Buus’s fibromyalgia, headaches, degenerative
disc disease of the cervical and lumbar spine, obesity, depression, and anxiety
were severe impairments. As for Buus’s eye condition, however, the ALJ found
that “there is no indication this impairment has lasted, or is likely to last,
longer than 12 months.” AR 15.18 Therefore, the ALJ concluded “it cannot serve
as a basis for disability under the Regulations.” AR 15.
Buus contends that the ALJ erred at step two by failing to identify her
eye condition as severe. At step two, a claimant must establish whether she
has a medically determinable physical or mental impairment that is severe. 20
C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii); see also Kirby v. Astrue, 500 F.3d
705, 707 (8th Cir. 2007) (“It is the claimant’s burden to establish that his
The ALJ also concluded that Buus’s endometriosis was not a severe
impairment. AR 15. Buus does not challenge the ALJ’s conclusion on this
point.
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impairment or combination of impairments are severe.”) (citing Mittlestedt v.
Apfel, 204 F.3d 847, 852 (8th Cir. 2000). For an impairment to be severe, it
must “significantly” limit the claimant’s physical or mental ability to do basic
work activities, 20 C.F.R. §§ 404.1520(c); 416.920(c), which includes the
claimant’s capacity for sight. 20 C.F.R. §§ 404.1521(b)(2); 416.921(b)(2). A
severe impairment must also meet a durational requirement of having lasted,
or being expected to last, for a continuous period of at least 12 months. 20
C.F.R. §§ 404.1509, 416.909, 416.920(a)(4)(ii).
The Commissioner argues that any failure on the part of the ALJ to
consider Buus’s eye condition as a severe impairment was rendered harmless
because the ALJ continued on to step three. The Eighth Circuit has held that a
failure to correctly identify a severe impairment at step two even though other
severe impairments are found at that step is not necessarily harmless. See
Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007) (“[W]e reject the
Commissioner's argument of harmless error. We are persuaded by Nicola's
assertion . . . that the ALJ erred in failing to find that her diagnosis of
borderline intellectual functioning was a severe impairment.”). Therefore, the
court turns to whether the ALJ's determination regarding Buus’s eye condition
at step two is supported by substantial evidence in the record as a whole.
The ALJ issued his decision on April 16, 2013. At that time, Buus wore
corrective lenses. AR 234. And the only evidence pertaining to Buus’s eye
condition comprised of a small amount of medical records from January 2013
to March 2013. AR 902-905. On January 25, 2013, Buus complained of a new
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onset of “floaters” within the last month (AR 902); Buus was diagnosed with
pars planitis of the right eye and given steroid eye drops on February 5, 2013,
(AR 903); by February 19, 2013, Buus’s condition was “stable” (AR 904); and as
of March 20, 2013, Buus’s condition remained stable with questionably more
cells present (AR 905). At the ALJ hearing, Buus described her condition as
causing blurry vision in her right eye, and she testified that she had visited
with Dr. Vanden Bosch the day prior to the hearing. AR 63. The record from
that visit was not before the ALJ, although Buus acknowledged that Dr.
Vanden Bosch did not issue any more definitive findings. AR 63. Consequently,
the only evidence before the ALJ concerning Buus’s eye condition was that it
was relatively new and had stabilized after Buus received medical treatment.
Buus did, however, submit medical records regarding her eye condition
that were generated subsequent to the ALJ hearing. These records were
provided to and reviewed by the Appeals Council when it declined Buus’s
request for review. AR 4 (providing notice that the Appeals Council considered
“Medical Records from Sanford Eye Center dated March 22, 2013, through
August 16, 2013.”). Because the Appeals Council considered this new evidence,
the court should “include such evidence in the substantial evidence equation.”
Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995).
This evidence reveals the following: On April 2, 2013, the day before her
hearing with the ALJ, Buus saw Dr. Vanden Bosch and complained that her
vision was blurry. AR 1267. Dr. Vanden Bosch gave Buus an eye injection that
day, which alleviated some of the blur for approximately one week. AR 1268,
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1300. Buus met Dr. Vanden Bosch again on July 16, 2013, and she reported
that her vision was a little better, and that she experienced fewer floaters and
less blurriness. AR 1396. Buus requested another appointment on August 16,
2013, however, complaining of increased vision blur and more floaters. AR
1408. While an appointment was scheduled for August 20, 2013, the
administrative record ends without the medical records from that appointment
or subsequent appointments, if any. See AR 1408-16.
First, the evidence shows that for approximately eight (rather than at
least twelve) months, Buus experienced some degree of blurry vision in her
right eye that tended to improve and recede with treatment. See Wiseman v.
Sullivan, 905 F.2d 1153, 1157 (8th Cir. 1990) (concluding the claimant had
only introduced evidence that his impairment persisted for ten months).
Second, even if the condition persists, the medical records do not indicate that
the condition significantly limits Buus’s capacity for sight or any other basic
work activity. For example, by May 16, 2013, Buus’s visual acuity is listed as
“20/20” in her left eye, and “20/50 +1” in her right eye, and that she was
wearing corrective lenses. AR 1313. Consequentially, substantial evidence
supports the ALJ’s determination that Buus’s eye condition was not a severe
impairment.
II.
Whether the ALJ Erred in Applying the Listings
Buus contends that the ALJ failed to properly evaluate the medical
equivalency of her headaches and fibromyalgia to certain listed conditions. As
to Buus’s headaches, the ALJ found, “[t]he claimant alleges a history of severe
18
headaches, which are not specifically included in the Listing of Impairments in
the Regulations. Thus, the allegations of severe headaches neither meet nor
equal a listing.” AR 16. Similarly, regarding her fibromyalgia, the ALJ found
“. . . fibromyalgia is not specifically included in the Listings of Impairments in
the Regulations. Accordingly, the claimant’s allegation of fibromyalgia neither
meets nor equals a listing.” AR 16. And regarding all of Buus’s impairments,
the ALJ concluded that “the impairments, individually and in combination, do
not meet or equal a listed impairment.” AR 15.
The Listing of Impairments contained in Appendix 1 of 20 C.F.R. part
404, subpart P, “describes for each of the major body systems impairments
that [the SSA] consider[s] to be severe enough to prevent an individual from
doing any gainful activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. §§ 404.1525(a), 416.925(a). At step three, the ALJ must
determine whether a claimant's impairments, when taken individually or in
combination, meet or are medically equal to a listed impairment. Shontos v.
Barnhart, 328 F.3d 418, 424 (8th Cir. 2003). If a claimant has an unlisted
impairment or impairments,19 “[the ALJ] will compare [the claimant’s] findings
with those for closely analogous listed impairments.” 20 C.F.R.
§§ 404.1526(b)(2), 416.926(b)(2). Similarly, when a claimant has “a
combination of impairments, no one of which meets a listing . . . [the ALJ] will
compare [the claimant's] findings with those for closely analogous listed
Buus acknowledges that neither headaches nor fibromyalgia are listed
impairments. Docket 11 at 21.
19
19
impairments.” 20 C.F.R. §§ 404.1526(b)(3), 416.926(b)(3). To be medically
equivalent, an impairment or combination of impairments must be “at least
equal in severity and duration to the criteria in any listed impairment.” 20
C.F.R. §§ 404.1526(a), 416.926(a). “Medical equivalence must be supported by
medical findings; symptoms alone are insufficient.” Finch v. Astrue, 547 F.3d
933, 938 (8th Cir. 2008). The claimant bears the burden of establishing that
her impairment or impairments equal a listing. Johnson v. Barnhart, 390 F.3d
1067, 1070 (8th Cir. 2004).
Buus argues that the ALJ did not specifically discuss whether her
headaches were medically equivalent to Listing 11.03 or whether her
fibromyalgia was medically equivalent to Listing 14.09. Although Buus is
correct, the ALJ's lack of explicit analysis does not, standing alone, warrant
reversal. As the Eighth Circuit has explained, “[t]here is no error when an ALJ
fails to explain why an impairment does not equal one of the listed
impairments as long as the overall conclusion is supported by the record.”
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); see also Karlix v.
Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (the fact that ALJ did not elaborate
on conclusion that claimant did not meet or equal any listed impairment did
not require reversal “because the record supports [the ALJ's] overall
conclusion”); Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir.
2003) (concluding that ALJ's failure to address a specific listing is not
reversible error if record supports overall conclusion). Thus, the question is
20
whether the record supports the ALJ’s overall conclusion that Buus’s
impairments did not equal a listed impairment.
A.
Is Buus’s History of Headaches Medically Equivalent to Listing
11.03?
The SSA has issued guidelines known as the Program Operations
Manual System (POMS) to assist agency employees processing claims for
benefits. The Eighth Circuit has concluded that “[a]lthough POMS guidelines
do not have legal force, and do not bind the Commissioner, this court has
instructed that an ALJ should consider the POMS guidelines.” Shontos v.
Barnhart, 328 F.3d 418, 425 (8th Cir. 2003) (citations omitted). Specifically,
POMS guideline DI 24505.015 discusses medical equivalence.20 This guideline
contains several example rationales–and the guideline expressly states they are
“examples only”–of how medical equivalence determinations can be made. One
example reads:
A claimant has chronic migraine headaches for which she sees her
treating doctor on a regular basis. Her symptoms include aura,
alteration of awareness, and intense headache with throbbing and
severe pain. She has nausea and photophobia and must lie down
in a dark and quiet room for relief. Her headaches last anywhere
from 4 to 72 hours and occur at least 2 times or more weekly. Due
to all of her symptoms, she has difficulty performing her ADLs. The
claimant takes medication as her doctor prescribes. The findings of
the claimant’s impairment are very similar to those of 11.03,
Epilepsy, non-convulsive. Therefore, 11.03 is the most closely
analogous listed impairment. Her findings are at least of equal
medical significance as those of the most closely analogous listed
impairment. Therefore, the claimant’s impairment medically equals
SSA, Finding Disability Based on the Listing of Impairments,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424505015 (last visited
May 13, 2015).
20
21
listing 11.03.
Listing 11.03 provides:
Epilepsy—nonconvulsive epilepsy (petit mal, psychomotor, or
focal), documented by detailed description of a typical seizure
pattern, including all associated phenomena; occurring more
frequently than once weekly in spite of at least 3 months of
prescribed treatment. With alteration of awareness or loss of
consciousness and transient postictal manifestations of
unconventional behavior or significant interference with activity
during the day.
20 C.F.R. part 404, subpt. P, App. 1, § 11.03.
Although Buus faults the ALJ for not specifically making this
comparison, Buus does not explain how the medical evidence she provided
would have established an equivalency between the severity of her headaches
and each of the criteria in Listing 11.03. “To establish equivalency, a claimant
‘must present medical findings equal in severity to all the criteria for the one
most similar listed impairment.” Carlson v. Astrue, 604 F.3d 589, 594 (8th Cir.
2010) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)) (emphasis in
original). For example, one criterion in 11.03 requires the frequency of epileptic
episodes–or in Buus’s case, headaches–to occur more than once weekly in spite
of at least 3 months of prescribed treatment. Here, the record shows that Buus
first complained of recurring headaches on April 15, 2011, when she met with
Barbara Schlenker and Lindsay Speer, although she was not prescribed any
treatment. AR 353. Approximately a month later, Buus then reported to the
emergency room for a migraine. AR 487. Dr. Lapka gave her Reglan and
Benadryl that day, which improved her symptoms. AR 489. Dr. Lapka noted,
22
however, that Buus did not have a history of frequent headaches at this time.
AR 489. Then Buus came to Dr. Sorensen on October 11, 2011, complaining of
headaches that occurred four to five times per week. AR 370. Dr. Sorensen
prescribed Buus 30 tablets of verapamil to be taken once daily for her
headaches. AR 370, 373. Although Buus never received a refill of verapamil, a
notation by Dr. Sorensen officially discontinuing the prescription was not
entered until April 20, 2012. AR 835. During the period from when verapamil
was prescribed and eventually discontinued, however, there are no records
from any medical provider indicating that Buus sought treatment for
headaches occurring more than once a week, whether or not migraine
headaches. After that period, references to headaches appear infrequently and
accompany some other condition. See AR 1258 (message sent from Buus to
Dr. Vanden Bosh at Sanford Eye Center on March 29, 2013 mentioning
headaches accompanying blurry vision); AR 1408 (similar message dated
August 16, 2013). Again, however, the record does not show that Buus
experienced weekly headaches in spite of at least three months of prescribed
treatment. For this reason, and because Buus has not shown an equivalence
between the severity of her headaches and any of the other criteria in Listing
11.03, substantial evidence supports the ALJ’s decision that Buus’s headaches
neither met nor equaled a listed impairment.
B.
Is Buus’s Fibromyalgia Medically Equivalent to Listing 14.09?
The SSA has also issued various Social Security Rulings (SSRs) that,
inter alia, provide a means of elucidating SSA policy. SSRs do not have the
23
force of law, but do bind the SSA. Newton v. Chater, 92 F.3d 688, 693 (8th Cir.
1996); see also 20 C.F.R. § 402.35(b). Cogent to this issue is SSR 12-2P,
wherein the SSA set out to “provide guidance on how [the agency] develop[s]
evidence to establish that a person has a medically determinable impairment of
fibromyalgia, and how [the agency] evaluate[s] fibromyalgia in disability claims
and continuing disability reviews under titles II and XVI of the Social Security
Act.” SSR 12-2P, 2012 WL 3104869 at *1 (SSA 2012). The SSR notes that
fibromyalgia is not a listed impairment, but that it may medically equal a
listing. Id. at *6. As an example, the SSR states that fibromyalgia may be
medically equivalent to Listing 14.09D, which pertains to inflammatory
arthritis. Id. Accordingly, Buus contends that her fibromyalgia should have
been compared to inflammatory arthritis.
While the SSR specifically mentions Listing 14.09D as an example, Buus
suggests her fibromyalgia is medically equivalent to Listings 14.09A or
14.09B.21 Listing 14.09A is,
Persistent inflammation or persistent deformity of:
1. One or more major peripheral weight-bearing joints
resulting in the inability to ambulate effectively (as defined
in 14.00C6); or
2. One or more major peripheral joints in each upper
extremity resulting in the inability to perform fine and
gross movements effectively (as defined in 14.00C7).
20 C.F.R. part 404, subpt. P, App. 1, § 14.09A. And Listing 14.09B is,
In her brief, Buus refers to Listing 14.09A as “14.09,” although the
criteria Buus lists corresponds with those in 14.09A. See Docket 11 at 23.
21
24
Inflammation or deformity in one or more major peripheral joints
with:
1. Involvement of two or more organs/body systems with one
of the organs/body systems involved to at least a moderate
level of severity; and
2. At least two of the constitutional symptoms or signs (severe
fatigue, fever, malaise, or involuntary weight loss).
20 C.F.R. part 404, subpt. P, App. 1, § 14.09B. Buus’s sole argument that the
severity of her fibromyalgia is medically equivalent to the criteria laid out in
14.09A and 14.09B is that ample medical evidence shows that she suffers
severe fatigue and chronic pain. Accepting that as true, however, would only go
toward the “constitutional symptoms or signs” criterion of Listing 14.09B,
without addressing the other requirements for 14.09B or 14.09A. And Buus
presents no argument for why her headaches and fibromyalgia in combination
would medically equal a listing. Thus, substantial evidence supports the ALJ’s
conclusion that Buus’s impairments, whether individually or in combination,
did not medically equal a listed impairment.
III.
Whether the ALJ Erred in Determining Buus’s RFC
Before an ALJ moves to step four, the ALJ must determine the claimant's
RFC. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4). A claimant's RFC “is the most
[she] can still do [in a work setting] despite [her] limitations.” 20 C.F.R.
§§ 404.1545(a)(1); 416.945(a)(1). The RFC assessment is an indication of what
the claimant can do on a “regular and continuing basis” given the claimant's
limitations. 20 C.F.R. §§ 404.1545(b); 416.945(b). “ ‘The ALJ should determine
a claimant's RFC based on all the relevant evidence, including the medical
25
records, observations of treating physicians and others, and an individual's
own description of [her] limitations.’ ” Lacroix v. Barnhart, 465 F.3d 881, 887
(8th Cir. 2006) (quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir.
2004)). The RFC must include the limitations from all medically determinable
impairments, regardless of whether they are considered severe. See SSR 96–8p,
1996 WL 374184 at *5 (SSA 1996) (“In assessing RFC, the adjudicator must
consider limitations and restrictions imposed by all of an individual's
impairments, even those that are not ‘severe.’ ”).
In determining Buus’s RFC, the ALJ considered Buus’s motorcycle
accident, her complaints of pain in her joints, back, neck, knees, shoulders
and wrists, as well as numbness, fatigue, body aches, fibromyalgia, headaches,
anxiety, depression, and medications. AR 18-22. The ALJ made findings on
Buus’s credibility, and considered medical opinions from Dr. Sorensen as well
as several state agency physicians. AR 22-24. The ALJ ultimately determined
Buus had the RFC to perform light work within the following parameters:
She can lift and carry 20 pounds on occasion and 10 pounds, or
less, frequently. With normal work break, she can sit 6 hours as
well as stand and walk, combined, 6 hours in an 8-hour workday.
She can climb stairs occasionally but must avoid ladders,
scaffolds, and ropes. She can occasionally balance but stoop,
kneel, crouch, and crawl only occasionally. She has no reaching,
manipulation or communication limits, and no visual limits - with
glasses. She must avoid concentrated exposure to hazards, such
as unprotected heights, fast and dangerous machinery. She has
chronic pain and discomfort, but with appropriate medication can
be active at these limits. She has mild limits in activities of daily
living, with moderate limits on social functioning and
concentration, persistence and pace. The term “mild” as used
herein and defined for the vocational expert means slightly
affected, but not interfering in work activity, while the term
26
“moderate” means affected, not precluded, such that a person is
performing at lower acceptable limits for most workplaces. As
defined, she has moderate limits in interacting with the public, in
getting along with co-workers, and in accepting instruction or
criticism from supervisors. She is moderately limited in carrying
out detailed instructions, maintaining extended concentration, and
adapting to changes in work routine or setting. She is limited to
brief, superficial contact with others, and to performing simple,
routine, and repetitive tasks of three steps on average.
AR 18.
A.
Buus’s Credibility
“[W]hen evaluating a claimant’s credibility, in addition to considering the
absence of objective medical evidence to support complaints of pain, an ALJ
should consider a claimant’s reported daily activities, the duration, frequency
and intensity of his or her pain, precipitating and aggravating factors,
medication, and functional restrictions.” Steed v. Astrue, 524 F.3d 872, 875 n.4
(8th Cir. 2008) (citing Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)); see 20
C.F.R. §§ 404.1529(c)(3); 416.929(c)(3). “The ALJ is not required to discuss
methodically each Polaski consideration, so long as [the ALJ] acknowledged
and examined those considerations before discounting [Buus’s] subjective
complaints.” Steed, 524 F.3d at 876 (internal quotation omitted). An ALJ must
make express credibility determinations detailing reasons for discounting a
claimant’s subjective complaints of pain. Dipple v. Astrue, 601 F.3d 833, 837
(8th Cir. 2010). An ALJ’s credibility determination is entitled to deference
because the ALJ is in a better position than a reviewing court to gauge
credibility. Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007).
27
The ALJ found that “[Buus’s] medically determinable impairments could
cause some of the alleged symptoms. However, her statements concerning the
intensity, persistence, and limiting effects of these symptoms are not entirely
credible[.]” AR 22. The ALJ observed that the objective medical evidence was
not consistent with respect to Buus’s pain. AR 18 (noting that “repeated
physical examinations showed relatively normal range of motion, muscle
strength, and neurologic function.”). The ALJ also observed that Buus’s
activities of daily living were inconsistent with her allegations of disabling pain.
AR 17 (referencing Buus’s testimony that she drove her own vehicle, went to
the grocery store, helped take care of the two dogs at her parents’ home, would
attend monthly meetings for a woman’s organization, and that she would help
out with housekeeping from time to time). The ALJ concluded there was
evidence showing her symptoms were managed primarily with medication and
physical therapy, and that her treatment regime had primarily been
conservative in nature. AR 22. The ability to successfully control pain with
medication can be inconsistent with an allegation of disabling pain. Moore v.
Astrue, 572 F.3d 520, 525 (8th Cir. 2009). If an impairment can be controlled
through treatment or medication, it cannot be considered disabling. Id. (citing
Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997)). Additionally, the ALJ
was concerned by the number of times Buus had been discharged from
physical therapy, which suggested to the ALJ that “[Buus’s] symptoms may not
have been as serious as alleged[.]” AR 22. “A failure to follow a recommended
course of treatment also weighs against a claimant’s credibility.” Guilliams v.
28
Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (citing Gowell v. Apfel, 242 F.3d
793, 797 (8th Cir. 2001)). The ALJ therefore concluded that Buus’s allegations
of pain were not fully credible.
The ALJ’s conclusion is not without its flaws. First, the activities of daily
living Buus enjoys, namely shopping, household chores, and occasional social
activities, are not inherently inconsistent with the physical limitations she
described. The Eighth Circuit has held that “the ability to engage in activities
such as cooking, cleaning, and hobbies does not constitute substantial
evidence” that a person with fibromyalgia is incredible. Brosnahan v. Barnhart,
336 F.3d 671, 667 (8th Cir. 2003); see also Hutsell v. Massanari, 259 F.3d 707,
713 (8th Cir. 2001) (explaining “a claimant need not be bedridden to qualify for
disability benefits.”) (citation omitted). Second, physical examinations that
show a relatively normal range of motion, muscle strength, and neurologic
function can be consistent with normal results for fibromyalgia sufferers. Cline
v. Colvin, 771 F.3d 1098, 1105 (8th Cir. 2014). Nonetheless, the ALJ noted a
consistent pattern over a lengthy period of time where Buus’s spine and joint
functions were determined to be normal. AR 20-21; see AR 1087 (Dr. Sorensen
noted that Buus’s spinal range of motion was normal); AR 864 (Dr. Gavankar
found that Buus had good strength and range of motion in her joints); AR 761
(Dr. Boetel found Buus’s EMG study was normal).
Buus also takes issue with the ALJ’s finding that her treatment regime
was conservative and manageable with medication. The record shows, however,
that Dr. Sorensen routinely recommended physical therapy or a home exercise
29
program to address her various manifestations of pain. See AR 334-35, 336,
339, 341, 343, 365. Other medical providers did the same. AR 297, 302
(Dr. Kimber), 299 (Dr. Haft), 751 (Dr. Gust), 761 (Dr. Boetel), 866
(Dr. Gavankar, aquatic therapy). A pattern of conservative treatment is a
proper factor for the ALJ to consider in evaluating a claimant’s credibility. See
Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Buus’s medical records do
show that she was prescribed a number of medications, some of which were
added or increased, and others were decreased or discontinued. See, e.g., AR
818 (Neurontin increased), AR 835 (verapamil discontinued). The ALJ did not
find Buus incredible for lack of prescribed pain medication, however, but found
that the pain she experienced could be controlled by that medication. Moore,
572 F.3d at 524. The ALJ documented a number of instances where Buus
reported positive responses to her medication. AR 19-21. And while Buus
attended some of her recommended physical therapy, she was discharged on at
least three separate occasions for failing to appear or for excess cancellations.
AR 554, 466, 475. The ALJ was entitled to take those instances into
consideration. Guilliams, 393 F.3d at 802. Thus, Buus may disagree with the
ALJ’s characterization of her treatment as conservative, as well as the ALJ’s
observation that she did not follow through with her treatment several times,
but those observations are supported by the record.
Finally, Buus argues that the ALJ did not provide a detailed analysis for
each Polaski criteria. For example, Buus notes that the ALJ did not include a
specific finding as to her work history. Although this is true, the ALJ is not
30
required to explicitly discuss each Polaski factor, so long as the framework is
acknowledged before discounting Buus’s subjective complaints. Steed, 524
F.3d at 876. The ALJ also expressly made a credibility finding. Goff v. Barnhart,
421 F.3d 785, 791 (8th Cir. 2005). And the issue before this court is not
whether the ALJ’s credibility finding is unassailable, but whether it is
supported by substantial evidence. Guilliams, 393 F.3d at 801; Pearsall v.
Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (“The credibility of a claimant’s
subjective testimony is primarily for the ALJ to decide, not the courts.”).
Substantial evidence is less than a preponderance, and the court may not
reverse merely because substantial evidence would also support a conclusion
opposite of that reached by the ALJ. Pate-Fires, 564 F.3d at 942. While the
ALJ’s credibility determination has its weaknesses, it is nonetheless supported
by substantial evidence.
B.
Medical Opinion Evidence
A treating physician’s opinion on the nature and severity of the
claimant’s impairments is entitled to controlling weight if it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case record.” 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “A treating physician’s opinion ‘do[es]
not automatically control, since the record must be evaluated as a whole.’ ”
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Bentley v.
Shalala, 52 F.3d 784, 786 (8th Cir. 1995)). An ALJ may “discount or even
disregard the opinion of a treating physician where . . . a treating physician
31
renders inconsistent opinions that undermine the credibility of such opinions.”
Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (citations omitted). The
ALJ will also consider opinions from non-examining sources. 20 C.F.R.
§§ 404.1527(e); 416.927(e). If a treating physician’s opinion is not given
controlling weight, the ALJ should consider several factors in weighing it and
any other medical opinions in the record, such as the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, the supportability of the opinion, the consistency of the
opinion, and the specialization of the source. 20 C.F.R. §§ 404.1527(c);
416.927(c). The ALJ must always give good reasons for the weight afforded to a
treating physician’s evaluation. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
i.
Physical Limitations
a.
Dr. Todd Sorensen
Dr. Sorensen is a treating physician. He completed a check-mark RFC
questionnaire on March 6, 2013. AR 844-46. According to Dr. Sorensen, Buus
can occasionally lift less than 10 pounds, stand or walk less than 2 hours in
an 8-hour day, and must periodically alternate between sitting and standing in
order to relieve pain. AR 844. She is limited in her upper and lower extremities
because of weakness, and she cannot do repetitive motion. AR 845. She could
never climb, balance, stoop, kneel, crouch, reach overhead, or finger
(manipulation), and she could rarely handle or feel. AR 845. She needed to
32
avoid moderate exposure to extreme cold, extreme heat, wetness, humidity,
noise, vibration, fumes, and hazards. AR 846.
b.
Dr. Gregory Erickson
Dr. Erickson is a state agency physician who evaluated Buus’s physical
limitations. He completed an RFC assessment on January 20, 2012. AR 7281.22 Dr. Erickson’s report includes a summary of many of Buus’s medical
records from July 20, 2010, through October 25, 2011. AR 75-76. Dr.
Erickson found that Buus could occasionally lift and/or carry 20 pounds, and
frequently lift and/or carry 10 pounds. AR 78. She could stand or walk about 6
hours in an 8-hour day, and sit for about 6 hours in an 8-hour day. AR 79.
Dr. Erickson also found that Buus could occasionally climb, stoop, kneel,
crouch, and crawl. AR 79. He found that Buus had unlimited capacity to
balance, and no manipulative, visual, communicative, or environmental
limitations. AR 79. Based on his assessment, Dr. Erickson concluded Buus
could perform light work. AR 80.
c.
Dr. Kevin Whittle
Dr. Whittle is a state agency physician who, like Dr. Erickson, evaluated
Buus’s physical limitations. Upon reconsideration of Buus’s file, Dr. Whittle
completed his RFC assessment on June 25, 2012. AR 92-105.23 Dr. Whittle’s
This report was created in conjunction with Buus’s Title II application.
Dr. Erickson created an identical report accompanying Buus’s Title XVI
application. AR 82-91. For convenience, and because the reports are the same,
the court will reference the Title II report.
22
23
Like Dr. Erickson, Dr. Whittle completed two identical reports for
33
report includes medical records generated through April 3, 2012. AR 97-98.
Dr. Whittle reached the same conclusions regarding Buus’s physical limitations
as Dr. Erickson found. AR 101-102. Dr. Whittle similarly found that Buus
could perform light work. AR 104.
d.
ALJ’s Conclusion
The ALJ chose to discount Dr. Sorensen’s opinion because it “appears
heavily reliant upon subjective report[s] of symptoms and limitations provided
by the claimant. As discussed above, there exists good reason for questioning
the reliability of the claimant’s subjective complaints.” AR 23. The ALJ further
found that Dr. Sorensen’s opinion was “not consistent with his own treatment
records, which document minimal clinical findings, or with other medical
evidence in the file.” AR. 23. The ALJ thus chose to give the opinions of the
state agency examiners greater weight. AR 23.
The Eighth Circuit has recognized that an ALJ may discount a treating
physician’s conclusions when those conclusions are largely based on the
subjective reports of the claimant. McDade v. Astrue, 720 F.3d 994, 999 (8th
Cir. 2013). Buus contends, correctly, that Dr. Sorensen needed to rely on her
subjective complaints, particularly because Buus has been diagnosed with
fibromyalgia. See Garza v. Barnhart, 397 F.3d 1087, 1089 (8th Cir. 2005)
(noting that the ALJ misunderstood fibromyalgia when he indicated that
objective medical testing was necessary since it is usually diagnosed through
Buus’s Title II and Title XVI applications. AR 106-119. The first report will be
referred to.
34
subjective complaints). Although the ALJ questioned the diagnostic techniques
that led to Dr. Sorensen’s initial diagnosis of fibromyalgia, he did not assume
that Buus did not have the disorder.24 Rather, the ALJ disputed the extent of
Buus’s condition.
The ALJ observed that Dr. Sorensen performed a number of
examinations that revealed Buus retained generally normal physical
functionality. For example, when Buus visited Dr. Sorensen in March 2011,
her spinal range of motion was within normal limits. AR 336. When
Dr. Sorensen diagnosed Buus with fibromyalgia, he noted that she did not have
any pain, redness, or swelling of the joints. AR 357. In July 2011, Buus
underwent a physical examination that was generally normal. AR 367. Again,
Buus did not have pain, redness, or swelling of her joints. AR 366. When
Dr. Sorensen saw Buus for her headaches in October 2011, she had no loss of
balance, numbness, or weakness. AR 370. Buus again had a normal spinal
range of motion and intact muscular strength. AR 373. Similar observations
were made, along with findings that Buus’s extremities were normal in January
and April of 2012. AR 803, 817. Another physical exam was conducted on
August 28, 2012, which was generally normal. AR 920. That November,
Buus also notes that the ALJ stated a treating physician’s opinion is
usually afforded “great weight” rather than “controlling weight.” AR 23. Despite
the syntactical error, the ALJ stated that the treating physician’s opinion would
be accepted if “supported by medically acceptable clinical and laboratory
diagnostic findings.” AR 23. Thus, the ALJ did not analyze Dr. Sorensen’s
opinion under the incorrect standard. See 20 C.F.R. § 404.1527(c)(2) (noting a
treating source is afforded controlling weight if it “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case[.]”).
24
35
although Dr. Sorensen recorded that Buus was experiencing joint pain, he
again noted that there was no redness or swelling of the joints and that she
was not experiencing any numbness or weakness. AR 1010. And in December
2012, Dr. Sorensen again found that Buus’s spinal range of motion was
normal, her muscular strength was intact, and her extremities were normal.
AR 1087. As part of that same visit, Dr. Sorensen noted that Buus was
responding positively to her methotrexate prescription and had shown some
improvement. AR 1083. The body of evidence demonstrates that Dr. Sorensen’s
own treatment records and clinical findings conflict with the extreme
limitations he suggests in his report. AR 844-46; see Choate v. Barnhart, 457
F.3d 865, 870 (8th Cir. 2006) (finding that the ALJ was permitted to disregard
claimant's treating physician's opinion when it was unsupported by other
evidence in the record, specifically when treating physician failed to place any
limitations on claimant's activities prior to disability filing).
Buus faults the ALJ’s decision for not explicitly articulating the factors
set forth in 20 C.F.R. §§ 404.1527(c) and 416.927(c). The ALJ noted, however,
that Dr. Sorensen was Buus’s primary care provider, and the ALJ’s opinion
discussed the numerous instances where Buus came to see Dr. Sorensen for
her care. AR 19-21, 23. Comparatively, the ALJ acknowledged that
Dr. Erickson and Dr. Whittle were non-examining physicians who reviewed
Buus’s records. AR 22. Importantly, however, was the ALJ’s determination that
Dr. Sorensen’s conclusions regarding Buus’s limitations were not consistent or
supported by either his own records or the record as a whole. AR 23. By
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contrast, the ALJ determined Dr. Erickson’s and Dr. Whittle’s findings were
consistent with and supported by the record. AR 23. Additionally, the RFC
questionnaire filled out by Dr. Sorensen provided little context or reasoning for
why he believed the limitations that he assigned to Buus were appropriate. The
Eighth Circuit has explained that such evaluations do not convey much
evidentiary value. See Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012)
(agreeing “that a conclusory checkbox form has little evidentiary value when it
cites no medical evidence, and provides little to no elaboration.”) (quotation
omitted); see also Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (finding
the ALJ was correct to discount a treating physician’s report which “consists of
three checklist forms, cites no medical evidence, and provides little to no
elaboration.”). The ALJ was therefore justified in giving less weight to the
questionnaire filled out by Dr. Sorensen. Metz v. Shalala, 49 F.3d 374, 377 (8th
Cir. 1995) (finding the conclusory report from a treating physician was not
entitled to any more weight than another medical opinion).
A review of the record as a whole further supports the ALJ’s reliance on
the state agency experts’ conclusions over those given in Dr. Sorensen’s report.
For example, as to Buus’s motor skills, she underwent a physical examination
at the Sanford Orthopedics and Sports Medicine clinic on August 2, 2011, that
revealed good balance and coordination. AR 291. Regarding balance, strength,
and hand manipulation, Dr. Gavankar’s examination showed that Buus could
walk on her toes and heels, her “[m]uscle strength is 5/5,” and that she had
good range of motion in her joints. AR 864. On November 15, 2011, Dr. Boetel
37
performed an EMG, which was also normal despite complaints of pain. AR 760.
Thus, the ALJ had good reasons to give Dr. Sorensen’s report less weight.
As reflected in the RFC, the ALJ generally accepted the findings of
Dr. Erickson and Dr. Whittle as consistent with the medical record in order to
establish Buus’s RFC. AR 22.25 The ALJ believed, however, that additional
environmental limitations were appropriate given Buus’s headaches. AR 22; AR
18 (stating Buus “must avoid concentrated exposure to hazards, such as
unprotected heights, [as well as] fast and dangerous machinery.”). And
although the state agency physicians did not have Buus’s recent
ophthalmology records, the ALJ also included Buus’s use of corrective lenses in
the CFR. AR 18. The weight ascribed to the medical opinion evidence as well as
the ALJ’s findings as they pertain to Buus’s physical limitations is supported
by substantial evidence.
Buus takes issue with the ALJ’s findings regarding her balance
limitations. Both state agency physicians concluded Buus had no balance
limitations. AR 79, 101. The ALJ’s hypothetical to the vocational expert
included the ability to frequently balance but only occasionally stoop, kneel,
crouch, and crawl. AR 65. The ALJ’s RFC, however, concluded Buus can
“occasionally balance but stoop, kneel, crouch, and crawl only occasionally.”
AR 18 (emphasis added). The Commissioner submits this discrepancy is merely
a typo, as evidenced by the disjunctive “but” which is meant to contrast Buus’s
ability to balance with her more restrictive limitations of stooping, kneeling,
crouching, and crawling on an occasional basis. The Commissioner also points
to the ALJ’s finding that Buus reported no balance limitations to Dr. Sorensen.
See AR 20. Given the state agency findings, the ALJ’s hypothetical that
incorporated those findings, and the use of the word “but,” the court agrees
that the ALJ’s description that Buus had occasional balance limitations was a
typographical error.
25
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ii.
Mental Limitations
a.
Dr. Doug Soule
Dr. Soule is a state agency physician who evaluated Buus’s mental
limitations. His assessment was included in the overall report of Dr. Erickson
on January 20, 2012. AR 77. Dr. Soule found that Buus had no severe mental
disorder, that she had mild restrictions of her activities of daily living, mild
difficulty maintaining social functions, mild difficulties maintaining
concentration, persistence, or pace, and no repeated episodes of
decompensation. AR 77.
b.
Dr. Richard Gunn
Dr. Gunn is a state agency physician who, like Dr. Soule, evaluated
Buus’s mental limitations. Dr. Gunn performed his evaluation on
reconsideration of Buus’s file, and his report accompanies Dr. Whittle’s
assessment from June 25, 2012. AR 99-100. In contrast to Dr. Soule’s
findings, Dr. Gunn assessed Buus with several severe mental disorders. AR 99.
Dr. Gunn also provided a mental RFC on July 5, 2012. AR 102-103. He
found that Buus did not have any understanding or memory limitations. AR
102. She did, however, have some sustained concentration and persistence
limitations. AR 102. Dr. Gunn found that Buus was not significantly limited in
her ability to carry out short instructions, to adhere to a schedule, to work in
proximity with others without becoming distracted, or to complete a normal
workday and workweek. AR 102-03. Buus was found to be moderately limited
in her ability to carry out detailed instructions and to maintain her attention
39
and concentration for extended periods. AR 102. Additionally, Dr. Gunn
concluded that Buus had some social interaction limitations. AR 103. On one
hand, Buus was not significantly limited in her ability to interact with the
public, to ask simple questions or request assistance, to get along with
coworkers or peers, or to maintain socially appropriate behavior. AR 103. One
the other hand, Buus was moderately limited in her ability to accept
instructions and respond appropriately to criticism from supervisors. AR 103.
Finally, Dr. Gunn concluded that Buus did not have any adaptation
limitations. AR 103.
c.
ALJ’s Conclusion
Although neither doctor examined Buus, the opinions of Dr. Soule and
Dr. Gunn were the only medical opinions regarding Buus’s mental limitations
in the record. The ALJ accorded Dr. Gunn’s opinion greater weight and
generally adopted his findings. AR 23. By comparison, the ALJ concluded
Dr. Soule’s opinion received less weight because the record revealed a greater
level of mental health treatment and functional limitations than those found by
Dr. Soule. AR 23.
Buus asserts that the ALJ’s RFC formulation of her mental limitations is
at odds with the findings of the state agency physicians, and the ALJ did not
explain how the differences were ascertained. For example, while Dr. Gunn
found that Buus was not significantly limited in her ability to interact
appropriately with the general public, the RFC states that Buus has moderate
limits in interacting with the public. AR 103; 18. Dr. Gunn similarly found that
40
Buus did not have any adaptation limitations, but the RFC indicates Buus is
moderately limited in adapting to changes her work routine or settings. AR
103; 18. And although the RFC states that Buus is limited to performing
simple, routine, and repetitive tasks of three steps on average, Dr. Gunn’s
report did not include such a finding. AR 18. The Commissioner acknowledges
that these limitations on Buus’s ability to work are more restrictive than those
determined by Dr. Soule and Dr. Gunn.
First, assuming Buus is correct and the ALJ simply included several
more restrictive limitations, the effect of those additional limitations meant that
Buus was considered able to perform less work, not more. And the ALJ
nonetheless found that Buus was not disabled at step five in spite of those
additional limitations. Had the ALJ adopted the less restrictive findings of the
state agency examiners verbatim, the ALJ would have reached the same
conclusion. Thus, the ALJ’s error, if any, was harmless. Byes v. Astrue, 687
F.3d 913, 917 (8th Cir. 2012) (“Even if the ALJ had not erred, there is no
indication that the ALJ would have decided differently.”); see also Renstrom v.
Astrue, 680 F.3d 1057, 1068 (8th Cir. 2012); Hepp v. Astrue, 511 F.3d 798,
806 (8th Cir. 2008). Second, the ALJ did rely on evidence in the record in order
to make the findings it did. Beyond the findings of Dr. Soule and Dr. Gunn, the
ALJ considered Buus’s treatment history for anxiety and depression. AR 21-22.
Similarly, although the ALJ found Buus not entirely credible, the ALJ
considered her subjective complaints about her own mental limitations. AR 16-
41
18.26 For example, Buus stated she feels nervous around people she does not
know, that she sometimes has trouble with memory, and that she can’t stay
focused and becomes distracted easily. AR 233-35. She also indicated she does
not handle stress well and has difficulty adjusting to changes in her routine.
AR 234. And while Dr. Sorensen’s opinion did not receive much weight, the one
portion of his check-box questionnaire that included a handwritten notation
stated Buus was limited in performing repetitive motion. AR 845. The ALJ was
correct to consider these sources of evidence before condensing its ultimate
findings into the RFC assessment. Snead v. Barnhart, 360 F.3d 834, 836 (8th
Cir. 2004). On review, substantial evidence supports the ALJ’s conclusion.
CONCLUSION
Substantial evidence supports the ALJ’s determination that Buus’s eye
condition was not a severe impairment. Substantial evidence also supports the
ALJ’s conclusion that Buus’s conditions, considered individually or in
combination, were not medically equivalent to a listed impairment. And
substantial evidence supports the ALJ’s determination of Buus’s residual
functioning capacity. Accordingly, it is
The ALJ reviewed many of Buus’s subjective allegations as part of its
step two determination. The ALJ acknowledged, however, that those initial
findings were not a standalone RFC assessment because that required “a more
detailed assessment by itemizing various functions contained in the broad
categories” discussed in the step two evaluation. AR 18. The ALJ concluded
that the RFC reflected “the degree of [those] limitation[s].” AR 18.
26
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ORDERED that the decision of the Commissioner is affirmed.
Dated May 18, 2015.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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