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Angela Burrell O/B/O Deshantay E. Davis v. Michael J. Astrue

January 5, 2011


The opinion of the court was delivered by: The Honorable Richard M. Berman, United States District Judge:


Plaintiff Angela Burrell commenced this pro se action on behalf of her minor grandchild, Deshantay Davis, pursuant to 42 U.S.C. § 405(g). Plaintiff challenges the decision by the Commissioner of Social Security ("the Commissioner") to discontinue Deshantay's disability insurance benefits based upon a finding that she was no longer disabled. The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons that follow, I respectfully recommend that the Commissioner's motion should be granted.


A. Procedural History Deshantay Davis was born 1/31/2000 (42).*fn2 On or about March 10, 2000, plaintiff filed an application for disability benefits on behalf of Deshantay (92-95). The agency determined that Deshantay was disabled as of the date of her birth due to malnutrition, marasmus and failure to thrive, and her SSI benefits commenced on that date (42). Upon review of Deshantay's case, the agency determined that her health had improved and concluded that she was no long disabled as of August 20, 2002 (43-47). Consequently, her SSI benefits ceased on 10/01/02 (44). On or about November 8, 2002, plaintiff requested reconsideration on the ground that Deshantay was still disabled due to asthma and anemia (47-48). On March 7, 2003, following a disability hearing, the hearing officer determined that Deshantay was no longer disabled as of August 20, 2002 (63-73). On March 15, 2004, pursuant to plaintiff's request, a hearing was held before an administrative law judge ("ALJ") (27-41). On June 28, 2004, the ALJ issued a written decision in which he concluded that Deshantay's disability had ceased as of August 20, 2002 (14-26). Said decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 3, 2004. This action followed.

B. The Hearing Before the ALJ Plaintiff Angela Burrell, her daughter Jennifer Davis and claimant Deshantay Davis were present at the March 15, 2004 hearing before the ALJ (29). Deshantay was four years old at the time of the hearing (30).

1. Angela Burrell's testimony Angela Burrell is claimant's grandmother (32). Deshantay had been living with Ms. Burrell since 2000 (32). Deshantay goes to an asthma clinic in the Bronx for treatment (32). The treatment is administered via a mask, which Deshantay tries to use herself, but her mother and grandmother won't let her because Deshantay might give herself too much medication (33). Deshantay was born premature with chronic lung disease (33-34). She failed to thrive at first but, at the time of the hearing, that was no longer a problem (33). Deshantay had not been admitted to a hospital for the last year or so (34).

2. Jennifer Davis's testimony Ms. Davis is claimant's mother (29). The doctor determined that Deshantay's asthma was worse in the winter and normal in the summer (35). So, in the winter, the doctors prescribed a stronger Flovent pump for her. Ms. Davis and Deshantay live with Ms. Burrell (36). Ms. Davis stated that her biggest worry about Deshantay is that she gets out of breath when she runs (36-37). Deshantay was overweight at the time of the hearing and was on a diet per the doctors' recommendation (37). When Deshantay's SSI benefits ceased in February or March of 2003, her Medicaid benefits also stopped (38). Ms. Davis could not afford the self-pay for doctors, so she took Deshantay to the emergency room two or three times (38). Ms. Davis believed Deshantay was entitled to SSI because Ms. Davis believed that Deshantay could not work later in life if her asthma continued (38). Deshantay was learning her ABC's and could count (39).

C. Medical Evidence in the Record

1. Medical evidence upon which claimant was found to be disabled Deshantay was born at Bronx Lebanon Hospital at twenty-seven weeks gestation and weighed two pounds, one ounce (186, 189, 233). She remained in the hospital for almost three months until she was discharged on April 25, 2000 (186). At the time of her discharge, Deshantay was diagnosed with extreme status post chronic lung disease (186).

On May 10, 2000, Deshantay was examined at the Bronx Lebanon outpatient clinic (187). She weighed seven pounds, six ounces and was twenty and one-half inches long (187).

On June 20, 2000, Deshantay was examined by pediatric consultant Dr. Robert DeVita (189-91). Deshantay, who was then five months old, weighed eleven pounds, five ounces which placed her in the 15th percentile (190). She was eighteen inches long, which was far below the 5th percentile (190). Dr. DeVita noted claimant's "severe head lag" and her "slightly floppy" appearance (190). He stated that Deshantay did not respond to her name and did not sit with support (190). Dr. DeVita's impression was that Deshantay's developmental level was two months (190). He concluded that Deshantay's ability to perform age-appropriate activities and to behave in an age-appropriate manner were moderately affected, and her prognosis was fair (190-91).

On July 10, 2000, based upon a review of Deshantay's medical record, state agency physician S. Imam concluded that plaintiff met the requirements of section 100.02 of the listing of impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1 (193-96).

2. Medical evidence since the Comparison Point Determination date*fn3 From January 21 through January 23, 2001, Deshantay was treated at Bronx Lebanon Hospital Center for right lower lobe pneumonia and reactive airway disease (197). This was reportedly claimant's first episode of wheezing (208, 211). She was treated with antibiotics, inhalers and nebulizer treatments (211-213). When Deshantay was discharged on January 23rd, she had no wheezing or retraction and was not in respiratory distress (199).

On February 9, 2001, Deshantay was treated at Bronx Lebanon Hospital's Pediatric Asthma Center (215-219). She was diagnosed with mild to moderate persistent asthma, for which Flovent and Albuterol were prescribed (219).

In April 2001, the New York City Early Intervention Program ("NYCEIP") prepared an Individualized Family Service Plan ("IFSP") for Deshantay's mother, Jennifer Davis (224-31). Ms. Davis reported that Deshantay was in "good health" (222). Deshantay, who was fourteen months old, could crawl with her head up and was walking, but falling frequently (222). She could sit without support but her balance and coordination were weak (222). She walked on her toes when bare footed and could bend down consistently (222). Deshantay's muscles "seem[ed] a little bit tight" (222). She could take off her clothes and diaper when soiled or wet (222). She could drink from a straw and sippy cup, and slept through the night (222).

Deshantay's communication, cognitive and social/emotional skills were evaluated as follows (223): she spoke six or seven words; she tried to repeat and imitate new words; she would point and gesture to relate her needs; no oral-motor problems reported; Deshantay liked riding a bicycle; she had some concept of cause-and-effect (e.g. she would look for hidden toys, and if she threw a toy she realized it would "bang"); Deshantay was friendly, smiled and played with other children; she would cry if she didn't get her way; she had age-appropriate temper tantrums and range of emotions.

The goals of the IFSP were to improve Deshantay's vocabulary, motor skills, balance and coordination (224). Said goals were to be achieved via a home-based physical therapy program and with the use of toys, games, therapeutic techniques, equipment, repetition and modeling (224).

On April 9, 2002, Deshantay was examined by consultative examiner Dr. Emma Florez (233-35). Deshantay's mother, Ms. Davis, related Deshantay's history of asthma and anemia and stated that Deshantay's first asthma episode occurred in January 2001 (233). Ms. Davis reported that Deshantay had been seen in the hospital emergency room twice during the last year and had been admitted to the hospital for one week in January 2001 (233). Her last asthmatic episode was in March 2002 (233). She is treated with ...

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