Roy Kirby v. Michael J. Astrue

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3998
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Roy H. Kirby, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Michael J. Astrue, *
*
Appellant. *
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Submitted: June 15, 2007
Filed: September 11, 2007
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Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Roy Kirby applied for disability insurance benefits and supplemental security
income under the Social Security Act. 42 U.S.C. §§ 423, 1382. An administrative
law judge (“ALJ”) of the Social Security Administration denied his application,
concluding that he does not suffer from a severe impairment. The district court
reversed and remanded for entry of an award of benefits, and the Commissioner of
Social Security now appeals. We reverse and remand for entry of judgment for the
Commissioner.
I.
Kirby asserts that he is disabled because of hand tremors and psychiatric illness.
In 2001, he had a hearing before an ALJ, who found that he was not disabled because
his impairments were not severe. Kirby petitioned the Appeals Council for review
and submitted a psychiatric evaluation by a consulting physician, Dr. Bruce Harry, as
new evidence. The Appeals Council denied review, and Kirby sought judicial review.
The district court reversed and remanded to the Commissioner, instructing him to
develop and evaluate the record more fully and to give further consideration to Dr.
Harry’s report. The Commissioner did not appeal that decision, and it is not before
us.
After the remand from the district court, a different ALJ conducted a second
hearing. Kirby testified that he experienced tremors in both hands, and that the
tremors were more severe on the right side. Kirby stated that his “hand keeps at a
steady pace of shaking” that “never stops.” (A.R. 465). He also testified that he
suffered from at least seven seizures per day, some of which caused him to lose
control of his arms, and some of which caused his entire body to convulse.
Kirby also offered Dr. Harry’s report to support his claims of psychiatric illness.
Dr. Harry diagnosed Kirby with an “[e]ssential [t]remor,” “[d]ysthymic disorder”
(depression), and a “[c]ognitive [d]isorder not otherwise specified.” (Id. at 422). He
stated that Kirby performed poorly on memory tests and the Global Assessment of
Functioning. Dr. Harry concluded that given his psychiatric problems, Kirby was
“unable to do even simple, repetitive tasks under the stresses inherent to a competitive
environment.” (Id. at 423). He opined that Kirby “might be able to do some simple,
repetitive activities in a very low-stress, sheltered setting,” but that such activity
“would likely aggravate his already low self-esteem.” (Id.).
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The ALJ declined to accept Dr. Harry’s opinion, and concluded that Kirby’s
case was “full of exaggerations by the claimant, and dubious medical diagnoses.” (Id.
at 283). He found that Kirby suffered from a “mild right upper extremity tremor,” but
that Kirby’s physical impairments were controlled by medication, and were not severe
enough to prevent him from maintaining a normal work schedule. (Id. at 284, 286).
The ALJ also found that Kirby’s psychiatric problems, including “possible mild
dysth[y]mia,” did not significantly limit his ability “to think, understand,
communicate, concentrate, get along with other people, and handle normal work
stress.” (Id. at 285-86). The ALJ found that Kirby had only “slight abnormalities”
that did not “significantly limit[] the performance of any basic work activities.” (Id.
at 283). In terms of “mental functioning,” the ALJ applied 20 C.F.R. § 404.1520a,
which describes a “special technique” for evaluating claims of mental impairment, and
determined that Kirby had “no more than a minimal limitation in his ability to do basic
work activities.” (Id. at 285). For these reasons, the ALJ found that Kirby’s
impairments were not severe, and that he was therefore not disabled.
After the Appeals Council denied review, Kirby sought review in the district
court. The court concluded that the ALJ gave insufficient weight to Dr. Harry’s report
and to Kirby’s testimony about his limitations. The court reversed and remanded for
entry of an award of benefits, and the Commissioner appeals that decision.
We review the district court’s decision de novo. Leckenby v. Astrue, 487 F.3d
626, 632 (8th Cir. 2007). We will uphold the Commissioner’s denial of benefits, and
thus reverse the district court in this case, if the ALJ’s decision is supported by
substantial evidence in the record as a whole. See Simmons v. Massanari, 264 F.3d
751, 755 (8th Cir. 2001). Substantial evidence is less than a preponderance, but
enough that a reasonable mind might accept it as adequate to support a decision. Id.-3-
II.
The Commissioner uses a five-step evaluation to determine if a claimant is
disabled. Id. at 754; 20 C.F.R. § 416.920(a)(4). Step two of the evaluation states that
a claimant is not disabled if his impairments are not “severe.” Simmons, 264 F.3d at
754; 20 C.F.R. § 416.920(a)(4). An impairment is not severe if it amounts only to a
slight abnormality that would not significantly limit the claimant’s physical or mental
ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 153 (1987);
id. at 158 (O’Connor, J., concurring); 20 C.F.R. § 404.1521(a). If the impairment
would have no more than a minimal effect on the claimant’s ability to work, then it
does not satisfy the requirement of step two. Page v. Astrue, 484 F.3d 1040, 1043
(8th Cir. 2007). It is the claimant’s burden to establish that his impairment or
combination of impairments are severe. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th
Cir. 2000). Severity is not an onerous requirement for the claimant to meet, see
Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989), but it is also not a toothless
standard, and we have upheld on numerous occasions the Commissioner’s finding that
a claimant failed to make this showing. See, e.g., Page, 484 F.3d at 1043-44; Dixon
v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003); Simmons, 264 F.3d at 755; Gwathney
v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997); Nguyen v. Chater, 75 F.3d 429, 431
(8th Cir. 1996).
We conclude that ample evidence supported the ALJ’s conclusion that Kirby’s
hand tremors were not severe. There was substantial evidence that Kirby exaggerated
or invented his physical ailments, and that any genuine impairments were slight.
Kirby underwent several rounds of diagnostic testing to determine the cause of the
tremors, all of which produced normal results. Dr. Ravinder Arora, a consulting
physician, submitted a report stating that the tremor “seem[ed] to disappear . . . when
the patient was not paying any attention.” (A.R. 243). Several other doctors also
contradicted Kirby’s claim that the tremors “never stop[ped],” and noted that the
tremors were absent or diminished when Kirby was distracted or when a doctor first
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entered the room. (Id. at 168, 241, 307). Based on his examination and the medical
records, Dr. Arora concluded that the “tremors are intentional and are willful.” (Id.
at 248).
The ALJ had additional reasons to doubt Kirby’s credibility about his physical
impairments. Kirby testified that he had at least seven seizures a day, and that these
either left him without control of his arms, or caused his entire body to convulse. The
ALJ noted that “[n]o one has ever actually witnessed one of these alleged seizures.”
(Id. at 284). Kirby reported that he experienced seizures when he was hospitalized in
2005, but no member of the hospital staff observed them, and tests indicated that none
occurred. (Id. at 304, 366). The ALJ also found it “incredibl[e]” that Kirby
experienced multiple daily seizures, presumably without warning, but that he still
drove a car once a week, as he testified. (Id. at 284, 465).
Whatever Kirby’s actual physical impairments, substantial evidence supported
the ALJ’s conclusion that they were not severe. Dr. Arora stated that Kirby’s tremors
were “[m]inimal,” (id. at 243), which was consistent with the ALJ’s observation that
the tremors were not noticeable during the hearing. See Johnson v. Apfel, 240 F.3d
1145, 1147-48 (8th Cir. 2001) (“The ALJ’s personal observations of the claimant’s
demeanor during the hearing [are] completely proper in making credibility
determinations.”). Dr. Arora also opined that Kirby “has no difficulty with sitting,
standing, carrying, lifting, or handling objects,” and rated Kirby’s range of movements
as “normal.” (A.R. 243). This evidence was sufficient to show that Kirby’s physical
impairments did not significantly limit his ability to do basic work activities, such as
walking, standing, sitting, lifting, reaching, carrying, and so on. See 20 C.F.R.
§ 404.1521(b)(1).
Substantial evidence also supported the ALJ’s finding that Kirby did not suffer
a significant impairment because of his psychiatric illness. Kirby’s claims of
psychiatric problems have always been vague. His initial disability form did not claim
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a psychiatric basis for disability, and merely stated that his hand tremors might be
caused by “pantic or anxioux” [sic]. (A.R. at 102, 105). Perhaps his most specific
claim is that mental problems affect his memory. The medical evidence for this claim
is inconclusive, with memory tests producing opposite results. In 2000, Kirby
achieved a perfect score on two memory tests, (id. at 205), and in 2002, Dr. Arora
administered memory tests and reported that Kirby’s memory was intact. (Id. at 242).
But in March 2003, Kirby performed poorly on a memory test, (id. at 435), and two
months later, Dr. Harry opined that Kirby’s memory problems ranged from moderate
to severe. (Id. at 421). Then in 2005, the most recent testing in the record, Kirby’s
hospital notes stated that his “[r]ecent, remote, and past memory was intact.” (Id. at
351).
Kirby offered little evidence of any other mental impairment. The ALJ
observed that Kirby “has never had any formal treatment by a psychiatrist,
psychologist, or other mental health professional over any long-term basis, which he
presumably would have if he were . . . mentally disturbed.” (Id. at 285). At the
hearing, Kirby “displayed no obvious signs of depression, anxiety, memory loss, or
other mental disturbance.” (Id.). Dr. Arora opined that while Kirby may have
suffered from depression, his “[c]alculation, recall, comprehension, repetition,
judgment, and behavior were normal,” and that he “could follow commands.” (Id. at
243). This opinion conflicts with Dr. Harry’s view that Kirby could not perform even
“simple, repetitive tasks under the stresses inherent to a competitive environment.”
(Id. at 423).
It is the function of the ALJ to weigh conflicting evidence and to resolve
disagreements among physicians. See Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002). The district court’s order mistakenly stated that Dr. Harry’s opinion was
entitled to special deference because he was a treating physician. As the ALJ
recognized, Dr. Harry, like Dr. Arora, was a consulting physician, and Dr. Harry’s
opinion thus deserves no special weight. The ALJ was entitled to give less weight to
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Dr. Harry’s opinion, because it was based largely on Kirby’s subjective complaints
rather than on objective medical evidence. Vandenboom v. Barnhart, 421 F.3d 745,
749 (8th Cir. 2005). While Kirby argues that the ALJ failed fully to consider Dr.
Harry’s opinion, the ALJ did consider that opinion and decided to give it “little
weight.” This was a permissible determination, because Dr. Arora’s contrary view
was supported by better medical evidence.
We thus do not agree with the district court that the ALJ gave insufficient
weight to Dr. Harry’s report and to Kirby’s testimony about his limitations.
Substantial evidence in the record as a whole supports the ALJ’s conclusion that
Kirby’s physical and mental impairments were slight, and that they did not
significantly limit his ability to perform basic work activities. The ALJ plainly
believed that Kirby’s impairments had no more than a minimal effect on his ability to
work, and this conclusion is supported by the record. See Henderson v. Sullivan, 930
F.2d 19, 21 (8th Cir. 1991). Accordingly, the ALJ permissibly found that Kirby’s
impairments were not severe, and that Kirby was not disabled.
* * *
For these reasons, the judgment of the district court is reversed, and the case is
remanded with instructions to enter judgment for the Commissioner.
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