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Kirk v. Colvin

United States District Court, W.D. Kentucky, Louisville Division

March 31, 2014

DEBRA M. KIRK, Plaintiff,


JAMES D. MOYER, Magistrate Judge.

The plaintiff, Debra M. Kirk, filed this action pursuant to 42 U.S.C. §405(g), seeking judicial review of an administrative decision of the Commissioner of Social Security, who denied her applications for disability insurance and supplemental security income benefits. Ms. Kirk asserts that the administrative law judge ("ALJ") erred when he determined that she retains the residual functional capacity to perform simple, routine, unskilled work at the medium exertional level with additional limitations.

After reviewing the parties' fact and law summaries and the administrative record, and additional evidence that Ms. Kirk submitted for the first time on appeal, the court concludes that the ALJ did not err as a matter of law and that there does not exist any basis for remanding this matter pursuant to Sentence Six of 42 U.S.C. § 405(g).


Ms. Kirk filed an application for disability insurance benefits in March 2011 and alleged she became disabled in August 2008. After her application was denied by the state agency, she requested a hearing with an administrative law judge (an "ALJ"). Following the evidentiary hearing, at which Ms. Kirk and a vocational expert testified, the ALJ issued an opinion in which he determined that Ms. Kirk suffers from the severe impairments of bronchitis, major depressive disorder, general anxiety disorder, and panic disorder with agoraphobia, none of which, either singly or in combination, meet or equal the criteria of any of the mental health impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. The ALJ determined that Ms. Kirk's alleged impairments of back and extremity pain, diabetes mellitus, and hypertension were not severe, because they did not interfere with her ability to perform work related functions.

The ALJ further determined that Ms. Kirk retains the residual functional capacity to perform the simple, routine, unskilled work at the medium exertional level, with some additional limitations pertaining to her physical and mental mental health issues. Based on this finding, his determination that Ms. Kirk has "at least" a high school education, and the testimony of the vocational expert present at the hearing, the ALJ concluded that Ms. Kirk could not perform her past relevant work, but could perform certain jobs that exist in significant numbers in the national economy.

Ms. Kirk argues that these determinations were incorrect, and that additional evidence confirming that the ALJ erred should now be considered on appeal.


Although a district court may not try a Social Security appeal de novo, it need not affirm the conclusions of the Commissioner of Social Security if an administrative law judge failed to apply the correct legal standards or made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); see also Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008).

A. Whether the ALJ's Analysis at Step Two (Finding 3) is Inconsistent with His Finding at Step Four (Finding 5)

At step two of his analysis ( i.e., which of Ms. Kirk's impairments are severe), the ALJ deemed only one of her physical impairments (bronchitis) to be severe. Yet, in spite of declaring that Ms. Kirk's "low back and extremity pain... do not affect her ability to perform basic work related activities, "[1] the ALJ included exertional limitations to accommodate those conditions. To Ms. Kirk, who is no longer represented by counsel, this must seem confusing - either the pain in her back, legs and feet affects her ability to work, or it does not. The ALJ's analysis is not legally faulty, however.

The governing regulations state that an impairment is not severe when it "does not significantly limit [one's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1521(a) and 416.921(a). Basic work activities are defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(b) and 416.921(b). They include: (1) physical functions, e.g., walking, standing, lifting, bending, or pulling; (2) the capacity to see, hear and speak; (3) the ability to understand, carry out, and remember simple instructions; (4) the ability to use one's judgment; (5) the ability to respond appropriately to supervision, co-workers, and usual work situations; and (6) the ability to deal with change in a routine work setting. Id. In spite of the regulations' language regarding "significant" limitations, though, the Sixth Circuit repeatedly has remarked that the goal of the test is simply to screen out totally groundless claims. Higgs, 880 F.2d 862-63. Accordingly, the Sixth Circuit considers step two "a de minimis hurdle, " and has declared that "an impairment can be considered not severe only if it is a slight abnormality that minimally affects work ability regardless of age, education, and experience." See Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir.1988); see also Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 243 n. 2 (6th Cir. 2007).

In his opinions, the ALJ reviewed and, with one immaterial exception, accurately cited the evidence in the record pertaining to Ms. Kirk's lower back and extremity pain, her diabetes mellitus, and her hypertension.[2] Her treatment has been minimal, there is no objective evidence to explain the degree of lower back and extremity pain she alleges, her doctors have not prescribed insulin, and her hypertension appears controllable. That being said, the state agency consultative examiner, Peter Urda, Doctor of Osteopathy, did note that Ms. Kirk has some reduced range of motion, [3] which the ALJ noted and accounted for in his conclusions regarding Ms. Kirk's residual functional capacity.

Moreover, as a practical matter, and as is the case here, it is often "legally irrelevant" if some of a claimant's impairments are deemed non-severe, because a finding of severity with respect to even one impairment requires the ALJ to consider the combined effect of all the claimant's impairments - both severe and non-severe - in the remaining steps of his analysis. 20 C.F.R. §§ 404.1523 and 404.1545(a)(2)). Accordingly, it is only seemingly inconsistent that the ALJ would not conclude that most of Ms. Kirk's physical impairments were severe, but nevertheless include certain exertional restrictions in his assessment of her residual functional capacity. The ALJ did not err when he determined that most of Ms. Kirk's physical problems were not ...

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