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Davis-Atkinson v. Jo-Anne B. Barnhart Judge Sweet Davis-Atkinson v. Jo-Anne B. Barnhart – Plaintiff pro se Melissa Davis-Atkinson (“Davis- Atkinson”) brought this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. §405(g), to obtain judicial review of a final decision of defendant Jo Anne B. Barnhart, the Commissioner of the Social Security Administration (the “Commissioner”), denying Davis-Atkinson’s request for disability insurance benefits and Supplemental Security Income (“SSI”). The Commissioner has moved for judgment on the pleadings, seeking an affirmance of the Commissioner’s decision. For the reasons discussed below, the Commissioner’s motion is granted. Prior Proceedings Davis-Atkinson filed for disability insurance benefits and SSI benefits as of April 23, 1998. She alleged that she had been disabled since December 1, 1991. She was last insured for disability insurance benefits as of September 30, 1992. Following a hearing on August 5, 1999, her applications were denied by an administrative law judge (“ALJ”) on September 17, 1999. The Appeals Council granted Davis-Atkinson’s request for review of the ALJ’s decision, vacated the ALJ’s decision and remanded the case to the ALJ for further proceedings. Another hearing was held on April 24, 2001. On September 26, 2001, the ALJ issued a decision finding that Davis-Atkinson was not disabled. The ALJ’s decision became final when the Appeals Council denied Davis-Atkinson’s request for review on January 17, 2002. On March 18, 2002, Davis-Atkinson filed the instant complaint in this Court. The Commissioner made the instant motion on January 24, 2003, and Davis-Atkinson submitted an affirmation in opposition dated February 14, 2003. The motion was considered fully submitted on March 5, 2003. Testimony and Non-Medical Evidence Davis-Atkinson was born on August 7, 1969 and was thirty- two years old at the time of the Commissioner’s final decision in this case. She testified at the administrative hearings that she had graduated from high school and had attended beauty school. She stated that she had previous work experience as a department store clerk, salon assistant and telephone interviewer. Davis-Atkinson stated that she had last worked in 1996 or 1997 at a beauty salon. She indicated that this job required her to walk two hours, stand two hours, sit three hours and occasionally bend. She reported that her job as a department store clerk involved two hours of walking, one hour of standing and four hours of sitting in an eight-hour day. The job required no lifting or carrying. Davis- Atkinson stated that she performed the job of telephone interviewer sitting. Davis-Atkinson testified that she stopped working in 1996 or 1997 because she had uncontrolled seizures and because she became pregnant. Davis-Atkinson testified that she did not believe that she could continue to work because it “would be complicated for an employer to keep somebody who has to stay out a lot.” Davis-Atkinson testified that she experienced a seizure every one to two months, associated with her menstrual cycle. She stated that she occasionally fell into things and became confused, that she had an “aura” and a headache before a seizure, and that she had another type of seizure, which she called a “staring” seizure. Davis-Atkinson was pregnant at the time of the April 2001 hearing, and stated that she was taking no seizure medication. Davis-Atkinson also reported that she had arthroscopic knee surgery in 1998, but admitted that her knee had been improving. Davis- Atkinson testified that she had mood swings and was not very rational when she had disagreements with her son’s father. She stated that she did fairly well on some days. Davis-Atkinson testified that she spent her time caring for her three-year-old son in the morning, taking him to school and then staying with her mother. She stated that she made her bed and occasionally swept. Davis-Atkinson testified that because she has allergies, her mother helps her with the housework. Davis-Atkinson stated that she does not have problems sitting, but that she sometimes has problems standing for long periods of time. Medical Evidence There is no medical evidence prior to September 1997. On September 12, 1997, Davis-Atkinson had a baby at St. Luke’s Roosevelt Hospital (“St. Luke’s”). There is no further evidence of medical treatment until a year later, when Davis-Atkinson was seen in August 1998 at an outpatient clinic at St. Luke’s for complaints of pain in her left knee. She underwent arthroscopic surgery with partial meniscectomy of her left knee on August 31, 1998. After surgery, Davis-Atkinson reported much less knee pain. On October 16, 1998, Davis-Atkinson was seen at the neurology clinic of St. Luke’s, where she reported that she had a seizure three weeks earlier with a headache and fatigue and that she had had three seizures in the prior six weeks. Depakote, a compound of sodium valproate and valporic acid used for prophylactic treatment of migraine headaches and to reduce complex partial seizures, was prescribed. Davis-Atkinson was also treated for a rash. Davis-Atkinson next received treatment at the outpatient clinics of St. Luke’s during the period of May 1999 through July 1999. She had an annual gynecological exam on May 13, 1999. On May 14, 1999, Davis-Atkinson was seen at the neurology clinic, where she reported that she had seizures that occurred at her menses, with a headache aura. She also reported episodic depression which resulted in her occasionally forgetting to take her medication. Depakote was continued. On May 27, 1999, Davis-Atkinson was seen at the clinic after she complained of dysmenorrhea and requested a prescription for Anaprox, which was prescribed. She was noted to have a seizure disorder, which was “well controlled on Depakote.” Valproic acid level was noted to be subtherapeutic, at 19.6 ug/ml. Davis-Atkinson visited the gynecology clinic several times in June 1999, during which time a possible cyst was noted. On July 13, 1999, she was seen at the gynecology clinic for abdominal pain, at which time she was noted to have a possible dermoid cyst on the left ovary. Medication was prescribed for a urinary tract infection. Davis-Atkinson was seen at the neurology clinic on July 16, 1999, and Depakote was continued. Dr. Besler of St. Luke’s prepared a report on September 1, 1999, noting that Davis-Atkinson’s most recent examination was on July 13, 1999. He reported that Davis-Atkinson had a history of a dermoid cyst, recurrent urinary tract infections and a seizure disorder. Clinical findings consisted of tenderness of the left quadrant of the abdomen. Diagnoses were seizure disorder, abdominal pain and dermoid cyst. Treatment consisted of Depakote and clinic visits. On May 22, 2000, Davis-Atkinson sought treatment at the gynecology clinic of St. Luke’s, complaining of pelvic pain. It was noted that she had stopped taking Depakote. She was referred to the neurology clinic to restart the medication. Davis-Atkinson was seen again at the gynecology clinic on May 24 and 31, 2000 for pelvic pain. Davis-Atkinson was seen at the neurology clinic on May 25, 2000. It was noted that she had not been in the clinic for a year, and Depakote was prescribed. Her valproic acid level on May 26, 2000 was 49.1 ug/ml. On June 16, 2000, Davis-Atkinson again revisited the neurology clinic at St. Luke’s. She reported that her last seizure had been about two weeks ago and that her seizures were associated with her menstrual cycle. Davis-Atkinson was told she had “psuedo- seizures.” The examination revealed no abnormalities. The diagnostic impressions were epilepsy, questionable pseudo-seizures and generalized seizures, controlled with Depakote, and migraine headaches. Additionally, Tegretol was prescribed. An electroencephalogram performed on June 22, 2000, showed normal results. In July 2000 and September 2000, Davis-Atkinson continued to be treated for pelvic pain at the gynecology clinic at St. Luke’s. A yeast infection was diagnosed and treated as well. On July 14, 2000, Davis-Atkinson was seen at the neurology clinic. She reported that she had seizures once a month with her menses, and that she had twitching and a headache behind her eyes. The doctor’s impression was migraine headache, questionable seizure, “very likely pseudo seizure.” The level of valproic acid and carbamazepine in Davis-Atkinson’s bloodstream was tested on July 11, 2000 and July 20, 2000. On July 11, 2000, valproic acid level was 18.3 ug/ml, and carbamazepine level was less than 0.5 ug/ml, each below therapeutic levels. On July 20, 2000, those figures were 0.7 ug/ml and 0.5 ug/ml, respectively, each again below therapeutic levels. On August 31, 2000, Davis-Atkinson was seen at the gastrointestinal clinic of St. Luke’s for symptoms of lactose intolerance. She was seen at the gynecology clinic on September 6, 2000 for a yeast infection and pelvic pain. Davis-Atkinson then was monitored from November 2000 to February 2001 at St. Luke’s for her pregnancy. Progress notes dated November 22, 2000 revealed that Davis-Atkinson had stopped taking seizure medication because of her pregnancy and that no seizures were reported. A social worker at St. Luke’s evaluated Davis-Atkinson on December 27, 2000. Davis-Atkinson reported a history of depression following the birth of her first child. She stated that she was told that her depression brings on her seizures. The social worker reported that Davis-Atkinson was oriented to person, place and time and that she appeared independent and self-sufficient. At the time, Davis-Atkinson was pregnant with her third child and lived with her two children and the father of her second child. Davis- Atkinson stated that she was stressed and depressed because her pregnancy was unplanned, and the child’s father was not helpful. Davis-Atkinson was reported to be aware of her behavior and was motivated to follow through with therapy. Treatment notes dated January 24, 2001 noted that Davis-Atkinson had a history of psuedo seizure, but indicated that she had not had any recent seizures. Medical Evaluations Dr. Martha Valdivia examined Davis-Atkinson on October 19, 1998. Davis-Atkinson reported that she had a history of seizures since 1991 for which she took Depakote. Davis-Atkinson stated she had had one seizure in the previous month. She also complained of depression, which she was told was due to a dosage change in Depokote. Davis-Atkinson reported that she had not had any psychiatric treatment, and Dr. Valdivia found no neurological abnormalities upon examination. She noted that Davis-Atkinson had a flat affect. On November 2, 1998, Dr. B. Patterson-Marshall examined Davis-Atkinson. Davis-Atkinson stated that an MRI of her brain and an electrocephalogram were normal. Dr. Patterson-Marshall’s examination revealed no neurological abnormalities. Dr. Patterson- Marshall was not certain of the type of seizures experienced by Davis-Atkinson, but believed that they might be partial seizures. The doctor stated that Davis-Atkinson should avoid operating heavy machinery or other dangerous activities. Dr. John Cordice, a state agency medical consultant, reviewed the medical record and assessed Davis-Atkinson’s residual functional capacity on November 30, 1998. He opined that she was able to sit, stand or walk for up to six hours each during an eight-hour work day. He opined that Davis-Atkinson could occasionally lift and carry up to fifty pounds, and frequently lift and carry up to twenty-five pounds. Dr. Cordice opined that Davis- Atkinson should avoid dangerous machinery and heights due to seizures. On February 16, 1999, Dr. Mannuccio Mannucci conducted a psychiatric evaluation of Davis-Atkinson. Davis-Atkinson, who was then twenty-nine years old, complained of depression and reported that she had had mood swings since she was fifteen years old. She stated that she was not under psychiatric care. Dr. Mannucci reported that plaintiff was friendly and cooperative, and oriented to time, place and person. Davis-Atkinson denied any hallucinations or delusions. Dr. Mannucci described her affect as labile and anxious, and her mood as depressed. He opined that Davis-Atkinson had adequate cognitive skills, and that her general fund of information was within normal limits. Davis-Atkinson was able to perform simple calculations and spell adequately. Occasionally her attention span seemed poor and questions had to be repeated. Her memory was normal. Dr. Mannucci opined that Davis- Atkinson was not able to grasp or follow instruction, and that she had poor ability to respond appropriately to supervision, co- workers and work pressures in a work setting. Dr. Teresella Gondolo conducted a neurological evaluation on February 11, 1999. Davis-Atkinson was reported to be taking Depakote, folic acid and multivitamins. Dr. Gondolo stated that Davis-Atkinson was alert and oriented to time, place and person. Her memory, speech and language were intact. Dr. Gondolo’s neurological examination revealed no abnormalities. Dr. Gondolo opined that Davis-Atkinson had no limitations in lifting, carrying, standing or walking. Dr. Daniel Luciano prepared a report dated September 5, 2001. He stated that he had treated Davis-Atkinson from August 2000 through April 2001. Davis-Atkinson reported that her first seizure had occurred at age nineteen when she underwent a Caesarian section during the birth of her first child. Dr. Luciano stated that Davis-Atkinson had been admitted to New York University Hospital for video EEG monitoring in November 2000, and that Davis- Atkinson’s seizure episodes were non-epileptic. He stated that Davis-Atkinson had non-epileptic seizures one to two times a day. Dr. Luciano’s diagnoses were non-epileptic seizures, mood disorder and sinus headaches. Dr. Luciano stated that Davis-Atkinson was not taking any medication because she was pregnant. Discussion Davis-Atkinson claims that she is entitled to benefits for her disability. The issue here is whether there is substantial evidence to support the Commissioner’s finding that Davis-Atkinson is not disabled, as that term is defined in the Act for the period for which she seeks benefits. 42 U.S.C. §§423(d), 1382c(a)(3) (defining disability). I. Standard of Review In deciding a motion for judgment on the pleadings, the court is generally limited to considering the factual allegations set forth in the complaint and corresponding answer. Fed. R. Civ. P. 12(c). A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that it is entitled to judgment as a matter of law. Juster Assocs. v. Rutland, 901 F.2d 266 (2d Cir. 1990); Adames v. Chater, No. 95 Civ. 9384, 1996 WL 306549 (S.D.N.Y. 1996); Madonna v. United States, 783 F. Supp. 165 (S.D.N.Y. 1992). The Act provides that the “findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Thus, the Commissioner’s determination must be upheld if the Court finds there is substantial evidence supporting it, even if there is also substantial evidence for the plaintiff’s position. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); see DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998) (Commissioner’s decision affirmed where substantial evidence for both sides). Substantial evidence in this context has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427 quoting Consolidated Edison co. v. NLRB, 305 U.S. 197, 229 (1938); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). The substantial evidence test applies not only to findings on basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1968); Stupakevich v. Chater, 907 F. Supp. 632, 637 (E.D.N.Y. 1995); Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977). The rule that the Commissioner’s findings of fact, as well as the inferences and conclusions to be drawn from those findings, are conclusive applies even in those instances where a reviewing court’s independent analysis of the evidence may differ from the Commissioner’s analysis. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983). In short, the reviewing court is not to decide the case de novo. Schaal v. Apfel, 134 F.3d at 501; Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that her submissions should be held ” ‘to less stringent standards than formal pleadings drafted by lawyers . . . .’ ” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should “ read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.’ ” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se status ” ‘does not exempt a party from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted). II. Burden of Proof In order to establish disability under the Act, Davis- Atkinson has the burden of establishing: (1) that she was unable to engage in substantial gainful activity by reason of a physical or mental impairment that could have been expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment was demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory techniques. 42 U.S.C. §423(d)(1)(A); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). For a person to be found disabled within the meaning of the Act, it is not sufficient that she establish the mere presence of a disease or impairment. The claimant bears the burden of persuasion to show that the disease or impairment has caused functional limitations that preclude her from engaging in any substantial gainful activity and thus that she is entitled to benefits. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983). The Commissioner has established a five-step sequential evaluation for adjudication of disability claims, 20 C.F.R. §416.920, which the Second Circuit Court of Appeals has articulated as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education and work experience; the [Commissioner] presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform . . . . [T]he claimant bears the burden of proof as to the first four steps, while the [Commissioner] must prove the final one. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord DeChirico, 134 F.3d at 1179-80. The Supreme Court has noted that in determining whether a claimant can perform less strenuous work, the Commissioner must assess each claimant’s individual abilities. Heckler v. Campbell, 461 U.S. 458, 467 (1983). In making these decisions, the Commissioner must consider objective medical evidence, opinions of examining physicians, subjective evidence of pain and disability and a claimant’s age, educational background and work history. Mongeur, 722 F.2d at 1037 (citing Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981); Parker, 626 F.2d at 231; Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). III. The Commissioner’s Decision The ALJ evaluated Davis-Atkinson’s claim pursuant to the sequential evaluation regulations discussed above, 20 C.F.R. §404.1520, 416.920, and found that Davis-Atkinson had a seizure disorder and a mild depressive disorder. The ALJ determined, however, that Davis-Atkinson did not have an impairment that was equal in severity to one listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. The ALJ further found that Davis-Atkinson had the residual functional capacity to perform work that does not involve working at heights or near dangerous machinery. The ALJ next found that based on her residual functional capacity and the requirements of her past work, Davis-Atkinson retained the ability to perform her past work as a telephone interviewer, beauty salon assistant and department store clerk. Therefore, the ALJ concluded that Davis-Atkinson was not disabled. IV. Disability Insurance Benefits Davis-Atkinson was required to prove that she was disabled prior to September 30, 1992, the date her insured status expired. Davis-Atkinson presented no medical evidence for the period prior to September 30, 1992. 42 U.S.C. §423(d)(5)(A) (plaintiff must prove existence of an impairment demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory techniques). Because plaintiff did not meet her burden of demonstrating disability prior to the date her insured status expired, V. SSI Benefits The ALJ properly determined that Davis-Atkinson was able to meet the physical and mental demands of her previous work. A. Physical Demands of Work No doctor provided evidence that Davis-Atkinson’s controlled seizure disorder or other physical condition imposed limitations on her ability to perform the functions of her past work. As discussed in greater detail above, the only limitations placed by physicians were that Davis-Atkinson should avoid operating heavy machinery, heights and performing other dangerous activities. There were no limitations noted with regard to Davis- Atkinson’s ability to lift, carry, stand and walk. Further, there were no abnormal findings in neurological examinations. As a result, substantial evidence supports the ALJ’s finding that Davis- Atkinson had the physical residual functional capacity to perform her past relevant work. B. Mental Demands of Work An impairment is considered severe if it significantly limits a claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §§416.920(c), 416.921. Examples of basic mental abilities include: (1) understanding, carrying out and remembering simple instructions; (2) use of judgment; (3) responding appropriately to supervision, co-workers and usual work situations; and (4) dealing with changes in a work setting. 20 C.F.R. §404.1521(b). Dr. Mannucci opined that Davis-Atkinson was not able to grasp or follow instructions, and that she had poor ability to respond appropriately to supervision, co-workers and work pressures in a work setting. The ALJ acknowledged and discounted this report, however, as Dr. Mannucci had examined Davis-Atkinson only once and his opinion was inconsistent with his own examination findings, as well as other evidence in the record. For instance, Dr. Mannucci noted that Davis-Atkinson was friendly and cooperative, and he found that she had adequate cognitive skills, a good general fund of information and normal memory. In addition, Dr. Mannucci noted that Davis-Atkinson was able to perform simple calculations and spell adequately. Other examinations also contradicted the conclusions of Dr. Mannucci. For instance, Dr. Gondolo found that Davis-Atkinson was alert and oriented to time, place and person, and that her memory, speech and language were intact. Dr. Luciano, Davis- Atkinson’s physician, diagnosed a “mood disorder” rather than depression. Finally, Davis-Atkinson testified herself that she does “pretty well” on some days, and testified that she cares for her son and does certain household chores. As a result, substantial evidence supports the ALJ’s finding that Davis-Atkinson had the mental functional capacity to perform her past work. If objective medical evidence is not sufficient to support a claimant’s allegations, the Commissioner considers such factors as (1) the claimant’s daily activities; (2) the nature, duration, frequency and intensity of her alleged symptoms; (3) precipitating and aggravating factors; and (4) the type of medication, other treatment or measures that the claimant uses for the relief of pain and other symptoms. 20 C.F.R. §416.929(c)(3). Davis-Atkinson testified that she stopped working because she was pregnant and her seizures were out of control. Those seizures are controlled with medication that she did not take while pregnant. The ALJ also found that Davis-Atkinson’s condition did not impair her ability to care for her young children and perform household chores. The ALJ further noted that Davis-Atkinson’s condition did not require ongoing treatment. Substantial evidence supports the Commissioner’s determination that Davis-Atkinson failed to sustain the burden of proof that she was under a disability within the meaning of the Act. As a result, the Commissioner’s decision is affirmed. Conclusion In light of the foregoing, the Commissioner’s motion for judgment on the pleadings is granted and Davis-Atkinson’s complaint is dismissed. It is so ordered. FootNotes: More particularly, the Act provides:[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . 42 U.S.C. §423(d)(2). Davis-Atkinson’s only opposition to the Commissioner’s motion is to argue that she should be afforded more time to present medical records from before September 1997. Because it was Davis- Atkinson’s burden to present such records before the ALJ, however, this opposition is unavailing.

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