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Trusty v. Colvin

United States District Court, E.D. Kentucky, Southern Division, Pikeville

August 20, 2014



JOSEPH M. HOOD, District Judge.

This matter is before the Court on cross motions for summary judgment. For the reasons discussed below, the motion of the Commissioner will be granted and the motion of Plaintiff Marylen Trusty will be denied.


Mrs. Trusty applied for disability insurance benefits on July 1, 2011, alleging her disability onset date was January 1, 2008. Tr. 11, 130-133. Her application was denied by a November 29, 2012 decision of the Administrative Law Judge (ALJ). Tr. 8-23. Plaintiff timely pursued her administrative remedies before the Commissioner, and the ALJ's decision is now ripe for review.

The date Plaintiff was last insured (DLI) was September 30, 2011. Tr. 13, 17, 26. Plaintiff completed the seventh grade and worked as a cab driver and restaurant assistant manager in the past. Tr. 29. She is 5 feet, 6-1/2 inches tall and recently lost 169 pounds. In February 2012, she weighed 212 pounds. Tr. 16, 1080. She can drive for about 30 minutes at a time. Tr. 28. She claims she is unable to work due to hernias, prior hernia repair surgeries, a heart attack, high blood pressure, a stroke, gastric bypass and diabetes. Tr. 157.

The ALJ concluded that Plaintiff had severe impairments due to obesity, residuals of hernia and abdominal surgeries, and an abdominal hernia. Tr. 13. He further concluded that, through the date last insured, she retained the residual functional capacity ("RFC") to perform a limited range of light work, except occasionally climb, frequently balance, stoop, kneel, crouch, and crawl, and needed a sit/stand option at one half-hour intervals. Tr. 15-17. Using the testimony of the vocational expert, the ALJ determined that, considering Plaintiff's age, education, work experience, and RFC, jobs existed in significant numbers in the national economy that Plaintiff could perform. Tr. 17-18. As a result, the ALJ held that Plaintiff was not disabled. Tr. 18.

Plaintiff appeals the ALJ's decision to this Court arguing that it should be reversed because the ALJ did not consider Plaintiff's back pain as a severe impairment, and he gave no weight to the opinion of Dr. Albaree, the treating physician. Plaintiff further argues the ALJ erred by giving great weight to the opinion of Dr. Ramona Minnis, who did not review all the medical evidence. DE 14, pp. 1-2.


The ultimate burden of proving a disability is on the plaintiff. 20 C.F.R. § 404.1512(a); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001). Judicial review of a decision of the Commissioner is limited to determination of whether the findings are supported by substantial evidence and whether the ALJ applied the correct legal standards. 42 U.S.C. § 405(g); White v. Commissioner of Social Security, 572 F.3d 272, 281 (6th Cir. 2009) ("The Commissioner's conclusions must be affirmed absent a determination that the ALJ failed to apply the correct legal standards or made findings of fact unsupported by substantial evidence in the record."). "We must defer to an agency's decision even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ.'" Foster, 279 F.3d at 353.

A. Plaintiff's Back Pain

Plaintiff argues that the ALJ should be reversed for not finding that she had an additional severe impairment of "back pain." DE 14-1, pp. 11-14. Omitting a potential severe impairment, however, is harmless error. Having found other severe impairments, "the Secretary must continue with the remaining steps in his disability evaluation." Cole v. Colvin, No. 2014 WL 2113018 at *5 (E.D. Ky. 2014), quoting Maziarz v. Secretary of Health and Human Services, 837 F.2d 240, 244 (6th Cir. 1987).

Since the Secretary properly could consider claimant's [alleged severe impairment] in determining whether claimant retained sufficient residual functional capacity to allow him to perform substantial gainful activity, the Secretary's failure to find that claimant's [alleged severe impairment] constituted a severe impairment could not constitute reversible error.

Id. The ALJ took Plaintiff's allegations of back pain from her hernia into consideration when he included a sit/stand option in the RFC assessment. Tr. 15-17, 31. This was not "confusing, " as Plaintiff argues; instead, it was an appropriate consideration under the circumstances.

It is the Plaintiff's burden to prove that she had an additional, distinct, severe impairment of back pain during the relevant period. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). To qualify as a severe impairment at step two of the sequential evaluation process, an impairment must significantly limit the claimant's physical or mental abilities to do basic work activities. 20 C.F.R. §§ 404.1520(c), 404.1521(a); Higgs, 880 F.2d at 863. The impairment must also be severe for at least twelve consecutive months to satisfy step two. 20 C.F.R. § § 404.1505(a), 404.1509, 404.1520(a)(4)(ii); Barnhart v. Walton, 535 U.S. 212, 217 (2002). A showing that an impairment became disabling after the DLI is not sufficient. King v. Secretary of Health and Human Services, 896 F.2d 204, 205-206 (6th Cir. 1990). The ALJ's determination here that ...

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