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Day v. Commissioner of Social Security

June 3, 2008


The opinion of the court was delivered by: Scullin, Senior Judge



Plaintiff filed an application for disability insurance benefits on October 28, 2002. See Administrative Transcript ("Tr.") at 78-80. Plaintiff's application was initially denied. See id. at 60. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on September 24, 2003. See id. at 27-59. On November 26, 2003, the ALJ issued a decision denying Plaintiff's application for disability benefits. See id. at 12-21. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on August 9, 2005. See id. at 5-8.

On October 6, 2005, Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) to review that final decision. In support of her argument that the Court should reverse Defendant's decision and award her benefits, Plaintiff asserts that (1) the ALJ erred in not considering Plaintiff's obesity in his disability determination; (2) the ALJ's residual functional capacity ("RFC") determination was not supported by substantial evidence and was affected by error of law; and (3) the ALJ erred in finding that Plaintiff was capable of performing substantial gainful activity. See Plaintiff's Brief at 7-13. To the contrary, Defendant contends that there is substantial evidence in the record to support the ALJ's decision and that, therefore, the Court should dismiss Plaintiff's complaint.


A. Personal History

Plaintiff was fifty-three years old at the time of the administrative hearing in 2003. See Tr. at 78. She completed high school and college and had past relevant work experience as a property manager and secretary. See id. at 100, 105. Plaintiff alleged disability due to impairments resulting from childhood polio, arthritis and obesity. See id. at 99; Plaintiff's Brief at 6-10.

B. Medical Evidence in the Record

1. Treating and Examining Physicians

Dr. Patrick O'Connell at Sentara Virginia Beach General Hospital performed right ankle arthrodesis bone graft surgery, which involved drilling into the ankle and grafting bone into the drill site, on Plaintiff on November 2, 2001. See Tr. at 133-35. Dr. O'Connell noted that Plaintiff had a "longstanding history of right ankle pain." See id. at 133. This pain was apparently secondary to a bone spur and arthritis. See id. at 154. At the follow-up on November 16, 2001, Dr. O'Connell noted that the incision was well-healed. See id. at 202. During late November and December of 2001, the wound site showed some opening; and on December 24, 2001, Dr. O'Connell noted that the "wound [was] not really healed completely yet but [was] certainly no worse." See id. at 197-99. When the wound had not healed by January 14, 2002, Dr. O'Connell discussed possible surgical debridement with Plaintiff. See id. at 194.

Plaintiff was admitted to the hospital again on January 22, 2002, for complications arising from infection of the surgery site. See id. at 136-49. Upon admission, Plaintiff complained of pain in her right ankle, but otherwise physical examination was normal. See id. at 139. On January 25, 2002, the date of discharge, Dr. John Alspaugh recorded that Plaintiff "had extreme amount of pain, much more than usual," but he stated that he was "sure it [was] nothing more than her own biologic tendency and perception of discomfort." See id. at 136. With treatment, the infection was resolving. See id.

Plaintiff was admitted to Maryview Medical Center on January 28, 2002, for swelling of the left upper extremity. See id. at 150-69. She was diagnosed with deep vein thrombosis of the left upper extremity and a chronic non-healing ulcer on the right foot, with history of cellulitis.

See id. at 151. Upon physical examination, Plaintiff's left upper extremity was slightly swollen and a slight erythema was noted over the inner aspect; the right upper extremity was fairly normal. See id. at 155. Plaintiff's right foot showed a non-healing scar area. See id. Otherwise, the physical examination was normal. See id. Plaintiff was discharged on February 2, 2002. See id. at 150.

Plaintiff presented to the Chesapeake Center for Cosmetic and Plastic Surgery on February 8, 2002, reporting that she had seen a plastic surgeon regarding her right foot but wanted to delay surgery. See id. at 179. Upon physical examination, Dr. Tad Grenga noted a desiccated fat-appearing wound on the right foot with no quality granulation or marginal epithelialazation present. See id. Dr. Grenga "propose[d] a period of conservative measures followed by possible debridement to ready th[e] wound for flap." See id. at 180. On February 15 and 27, 2002, Dr. Grenga noted that the wound appeared to be improving and discussed skin graft surgery with Plaintiff. See id. at 177. On March 13, 2002, Plaintiff indicated that she wished to proceed with conservative measures instead of surgery. See id. at 176. On March 27 and April 10, 2002, Plaintiff reported no new problems with pain or walking. See id. at ...

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