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Boggs v. Astrue

April 29, 2008


The opinion of the court was delivered by: Leon Jordan United States District Judge


This civil action seeks judicial review, pursuant to 42 U.S.C. § 405(g), of defendant Commissioner's final decision denying plaintiff's claims for benefits under Title II of the Social Security Act. For the reasons provided herein, defendant's motion for summary judgment [doc. 15] will be granted, and plaintiff's motion for judgment on the pleadings [doc. 10] will be denied. The final decision of the Commissioner will be affirmed.

I. Procedural History

Plaintiff applied for disability insurance benefits pro se in May 2006, claiming to be disabled by problems with her left extremities secondary to cerebral palsy. [Tr. 44, 62]. She alleged a disability onset date of July 1, 2004. [Tr. 44]. The application was denied initially and on reconsideration.*fn1

Still unrepresented by counsel, plaintiff in October 2006 requested a hearing before an Administrative Law Judge ("ALJ"). She referenced the existence of additional medical evidence from "Dr. Joanne Iven" of Hawkins Medical Center and expressed the desire to "submit such evidence" of her purportedly deteriorating health. [Tr. 37].

In January 2007, however, plaintiff signed and submitted the Commissioner's form, "Waiver of Your Right to Personal Appearance Before an Administrative Law Judge." [Tr. 38]. Claimants completing such waivers are required to affirm the following:

I have been advised of my right to appear in person before an Administrative Law Judge. I understand that my personal appearance before an Administrative Law Judge would provide me with the opportunity to present written evidence, my testimony, and the testimony of other witnesses. I understand that this opportunity to be seen and heard could be helpful to the Administrative Law Judge in making a decision.

Although my right to a personal appearance before an Administrative Law Judge has been explained to me, I do not want to appear in person. I want to have my case decided on the written evidence. . . . . . .

If I change my mind and decide to request a personal appearance before the Administrative Law Judge, I understand that I should make this request to the Hearing Office before the decision of the Administrative Law Judge is mailed to me.

I understand that I have a right to be represented and that if I need representation, the Social Security office or hearing office can give me a list of legal referral and service organizations to assist me in locating a representative. [Tr. 38] (underlining in original, italics added). In addition to her signed acknowledgment, plaintiff wrote that she was waiving her right to appear, "Because unless it's really nessasary [sic] I don't want to have to appear before a judge. I'd hoped to resolve this with out [sic] doing so." [Tr. 38].

On February 12, 2007, the ALJ issued a decision denying benefits. The ALJ first noted that plaintiff "knowingly and voluntarily waived in writing the right to personally appear and testify at a hearing[.]" [Tr. 14]. He also observed that plaintiff "is not represented by an attorney or other representative and despite being advised of her right to such representation she chose to proceed without a representative." [Tr. 18].

Secondary to a review and discussion of the administrative record, the ALJ determined that plaintiff suffers from the "severe" impairment of cerebral palsy, but that in plaintiff's case the impairment did not meet or equal any impairment listed by the Commissioner. [Tr. 16]. The ALJ concluded that plaintiff retained the residual functional capacity to return to her past relevant work as a store clerk. [Tr. 19].

Plaintiff then obtained an attorney [Tr. 10] and sought review from the Commissioner's Appeals Council. Review was denied on May 25, 2007, notwithstanding the submission of eight pages of additional medical records attributed to "Dr. Joanne Irvin." [Tr. 5-6, 9, 170-78]. The ALJ's ruling then became the Commissioner's final decision. See 20 C.F.R. § 404.981. Through her timely complaint, plaintiff has properly brought her case before this court for review. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981.

II. Plaintiff's Background and Testimony

Plaintiff was born in 1962. She reports an eleventh grade education. [Tr. 66]. Her past relevant employment, through 2004, is as a restaurant assistant and a store attendant. [Tr. 50, 62-63]. She has told the Commissioner, "I can't do very much walking or standing due to the cerebral palsy and how it has affected my feet. [I can't] do any lifting or carrying using the left hand." [Tr. 62]. At her consultative physical examination, plaintiff "elect[ed] to give no information" regarding her typical daily activities. [Tr. 157].

III. Relevant Medical Evidence and Opinions

A. Evidence Before the ALJ

As early as 1995, plaintiff was diagnosed with a "claw toe type deformity" of the left fifth toe. [Tr. 114]. A lesion on the left first toe was noted in 2000. [Tr. 109]. Plaintiff underwent left foot surgery in 2000 and discontinued treatment shortly thereafter. [Tr. 108].

In 1999, Dr. James Boss noted "a spastic gait with her left foot striking in a position of the forefoot striking before the heel. Once the foot is on the ground, the forefoot seems to be fairly well balanced on the ground. . . . Her toes do tend to curl." [Tr. 136]. In March 1999, Dr. Boss performed surgery to lengthen the left Achilles tendon. [Tr. 115]. At her last appointment in June 1999, Dr. Boss described the tendon surgery as "very successful" but still noted "marked deformity of the forefoot with curling of her toes[.]" [Tr. 122]. Dr. Boss released plaintiff to return to work. [Tr. 121].

Plaintiff presented to podiatrist Steven Wadsworth in December 2003 and April 2004 with complaints of left foot pain. [Tr. 144]. She also sought emergency room treatment during that same period. [Tr. 144-55]. Dr. Wadsworth observed limited foot mobility and difficulty with ambulation. [Tr. 144]. He recommended possible ...

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