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Kirby v. Colvin

United States District Court, Southern District of Indiana, Indianapolis Division

September 30, 2014

GERALD KIRBY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


Hon. Tanya Walton Pratt. Judge

Plaintiff Gerald Kirby (“Mr. Kirby”) requests judicial review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying his application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”). For the reasons set forth below, the Court AFFIRMS the decision of the Commissioner.


A. Procedural History

On December 31, 2010, Mr. Kirby filed an application for DIB, alleging disability beginning on June 30, 2010. His claim was denied initially on March 21, 2011, and again upon reconsideration on April 8, 2011. Mr. Kirby filed a written request for hearing on April 13, 2011. Administrative Law Judge (“ALJ”) Joel G. Fina held a video hearing on December 14, 2011. James M. McKenna, M.D. (“Dr. McKenna”), a medical expert, and James Breen, a vocational expert, also participated in the hearing. Attorney Michael G. Myers represented Mr. Kirby. The ALJ denied Mr. Kirby’s application on March 19, 2012. The Appeals Council denied Mr. Kirby’s request for review of the ALJ’s decision on April 3, 2013, making it the final decision of the Commissioner for purposes of judicial review. Mr. Kirby now seeks review of that decision.

B. Factual Background

At the time of his alleged disability onset date, Mr. Kirby was 50 years old. For the past fifteen years, he had worked as an electrician. Although he had two small gaps in earnings, Mr. Kirby has a long and consistent work history beginning in 1976, when he was sixteen years old, until mid-2009 when he had a heart attack. Although he attempted to return to work as an electrician, he was unable to perform the job due to shortness of breath and other difficulties. He now limits his activities to some driving, shopping, cooking, dishwashing, and short walks. Mr. Kirby suffers from symptoms relating to coronary artery disease, diverticulosis, hypertension, gastroesophageal reflux disease, neck and back pain, anemia, hyperlipidemia, and depression.

At the Administration’s request, Nina Dereska, M.D. (“Dr. Dereska”) personally examined Mr. Kirby on March 1, 2011. Mr. Kirby alleged disability because of chronic back pain, coronary artery disease, arthritis, and shortness of breath. He told Dr. Dereska that he had immobility in his neck and sometimes needed to walk with a cane. On the one hand, Mr. Kirby exhibited a normal gait, he had no difficulty getting on and off the examination table, he could tie his shoe by pulling his foot toward him, he had no tenderness or muscle spasm in his spine, he had no muscle wasting or atrophy, and an examination of his lungs and chest was normal. On the other hand, Mr. Kirby displayed decreased range of motion in his cervical and lumbar spine, shoulders and hips. Also, he could only walk on his heels and toes briefly, he could only stand on his left leg alone briefly because of hip pain, and he was unable to perform a full squat. Dr. Dereska noted that arthritis and chronic back pain affected Mr. Kirby’s ability to sit, stand, and walk, opining that he could only sit for 15-30 minutes, stand for 15 minutes, walk short distances with occasional use of a cane, lift 10 pounds, no overhead lifting, and he must avoid postural movements. These limitations were very similar to Mr. Kirby’s subjective report of his own limitations.

On March 19, 2011, J. Sands, M.D. (“Dr. Sands”) completed a physical assessment indicating that he believed Mr. Kirby could work at a much higher level than what Dr. Dereska believed he could do. Dr. Sands believed that Mr. Kirby could perform at a light exertional level, allowing him to stand, walk, or sit for 6 hours in an 8-hour workday, occasionally climb ramps or stairs, and balance, stoop, kneel, crouch, and crawl; however, he could not climb ladders, ropes, or scaffolds, work with machinery, or work around wet, slippery, or uneven surfaces. Although Dr. Sands stated that Mr. Kirby’s description of his own symptoms were credible, he explicitly noted that he did not agree with the entirety of Dr. Dereska’s opinion. Fernando Montoya, M.D. reconsidered and affirmed Dr. Sands’ assessment.

Dr. McKenna testified at Mr. Kirby’s hearing as a medical expert. Having reviewed all of the record evidence, Dr. McKenna testified that Mr. Kirby had insignificant narrowing in his coronary arteries (less than 40%) and no progression of his coronary disease. He testified that Mr. Kirby showed superb exercise capacity on three different stress tests, had good ejection fraction, and excellent myocardial function. However, Dr. McKenna noted that he did not have good imaging on Mr. Kirby’s back and that it was a confusing issue. He also noted that Mr. Kirby had restricted motion in his cervical spine. Dr. McKenna opined that Mr. Kirby could lift 10 pounds frequently, but could lift 20 pounds only occasionally, that he should avoid ladders, ropes, or scaffolds, and that he should not work in extreme cold or environmental irritants. Furthermore, Dr. McKenna stated that Dr. Dereska drew her conclusion without the benefit of several treadmill tests that cast doubt on her opinion.

During the hearing, Mr. Kirby testified that he did not believe that he could work five days a week for eight hours a day because of neck and back pain, shortness of breath, and diverticulitis. Furthermore, he testified that he could only sometimes sit for five minutes at a time. During the hearing, Mr. Kirby complained of pain located in his lower back, neck, and heart, which stemmed from a previously broken back, a car accident that injured his neck and collarbone, and his heart attack and coronary artery disease. He testified that his activities are limited to simple household chores and occasional driving and walking. However, the ALJ found that the medical evidence did not fully support his description of the magnitude of his symptoms and limitations and was inconsistent with the complete inability to sustain full-time work activity.


Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). If a claimant has physical or mental limitations that prevent him or her from maintaining gainful employment in the national economy, the claimant is disabled. 42 U.S.C. § 423(d)(2)(A).

There is a five-step process to determine whether a person is disabled. At step one, the Commissioner analyzes whether the claimant is engaged in substantial gainful activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled, no matter what the person’s medical condition is. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the Commissioner moves to the next step. At step two, the Commissioner analyzes whether the claimant has a “severe” impairment, meaning one that significantly limits his or her ability to perform basic work activities that meets the durational requirement. 20 C.F.R. § ...

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