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Konidis v. Colvin

United States District Court, W.D. New York

May 6, 2015

ANNETTE SUZANNE KONIDIS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security[1], Defendant.

REPORT AND RECOMMENDATION

HUGH B. SCOTT, Magistrate Judge.

Before the Court are the parties' respective motions for judgment on the pleadings (Docket Nos. 11 (plaintiff), 17 (defendant Commissioner)).

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled to disability insurance benefits and/or Supplemental Security Income benefits.

PROCEDURAL BACKGROUND

The plaintiff ("Annette Konidis" or "plaintiff") filed an application for disability insurance benefits on June 16, 2011. That application was denied initially and on reconsideration. The plaintiff appeared before an Administrative Law Judge ("ALJ"), who considered the case de novo and concluded, in a written decision dated September 14, 2012, that the plaintiff was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Commissioner on May 16, 2014, when the Appeals Council denied plaintiff's request for review.

Plaintiff commenced this action on July 14, 2014 (Docket No. 1). The parties moved for judgment on the pleadings (Docket Nos.11, 17). The motions were deemed submitted on March 30, 2015.

FACTUAL BACKGROUND[2]

Plaintiff was born in September 1963, and was 48 years old at the time of the hearing before the ALJ (R. 35). Plaintiff has her GED and attended business college for accounting. She worked as a bookkeeper, last working in 2005 (R. 21). Plaintiff lived in Arkansas when she applied for Social Security benefits (R. 162), but now lives in Kenmore, New York (Docket No. 1, Compl.).

Plaintiff claims impairments due to obesity (weighing 208 pounds at 5'3"), chronic obstructive pulmonary disease (or "COPD"), sleep apnea, loss of grip in hands and wrists, sensitivity to light and sound, fatigue, depression, leg edema, high blood pressure and degenerative disc disorder (R. 19, 20). Although she was a bookkeeper, plaintiff claimed that she was unable to balance a checkbook and was "messing up accounts at work before she quit" (R. 21, 38). Her husband testified that she could not concentrate to pay bills or deal with bank accounts (R. 25, 231, 253).

MEDICAL AND VOCATIONAL EVIDENCE

The ALJ found that plaintiff had no musculoskeletal system impairments, no respiratory system or cardiovascular system impairments, no neurological disorders that satisfied criteria for Social Security listings for the respective ailments, concluding that plaintiff's health improved with treatment (R. 19; Docket No. 17, Def. Memo. at 9-10). She had little evidence of claimed mood disorders. Applying the "paragraph B" criteria, the ALJ found that plaintiff had mild limitation on her activities of daily living, social functioning, and concentration, persistence and pace (R. 19), while plaintiff did not experience any episodes of decompensation (R. 19). The ALJ found that plaintiff to have severe impairments for obesity, COPD, and hypertension (R. 18; Docket No. 11, Pl. Memo. at 18), found that her claimed anxiety and depression were non-severe impairments (R. 18; Docket No. 11, Pl. Memo. at 18), as well as claimed sleep apnea and mild degenerative disc disease (R. 18).

Plaintiff testified that she lived in an apartment complex for persons with disabilities since she stopped working in May 2005 (R. 61). Before losing her job, plaintiff would miss three or four days a week at work or come in late (R. 63). While at work, plaintiff would "sleep, or go into some kind of trance" and she would have to be awakened and claimed that she could not concentrate without falling asleep (R. 63). Due to her COPD, plaintiff's breath is labored and she deemed strenuous activity taking a shower and prevents her from cleaning (R. 65). She claims that she could not be exposed to chemicals (R. 65). Plaintiff also blacked out from the labored breathing (R. 66-67). Plaintiff complains of not being able to focus or stay focused (R. 71). She surrendered her driver's license for medical reasons (R. 71-72).

The ALJ found that plaintiff's medically determinable impairments could be reasonably be expected to cause the symptoms but did not credit plaintiff's statements concerning intensity, persistence, and limiting effects of these symptoms "to the extent that they are inconsistent with the... residual functional capacity assessment" (R. 21). The ALJ found that plaintiff had a residual functional capacity to perform a full range of light work without severe or non-severe limitations (R. 20).

Plaintiff's Depression

On September 14, 2006, plaintiff was treated for shortness of breath and depression (R. 330; Docket No. 11, Pl. Memo. at 5). She reported that she had "too many losses" (R. 330) and was prescribed Paxil and Albuterol (R. 331; Docket No. 11, Pl. Memo. at 5). On a follow up examination, on October 12, 2006, plaintiff was diagnosed with (among other ailments) depression (R. 328; Docket No. 11, Pl. Memo. at 6). On January 9, 2007, plaintiff reported to physician assistant, noting her mood was "stable" (R. 326, 327; Docket No. 11, Pl. Memo. at 6). On February 22, 2007, plaintiff was examined for other medical conditions and was diagnosed with general anxiety disorder ("GAD") (R. 325). On April 5, 2007, plaintiff underwent a consultative general physical examination at the behest of the Social Security Administration, stating a medical history that includes (again, among other ailments) depression (R. 285; Docket No. 11, Pl. Memo. at 6). The examining physician also diagnosed depression (R. 291; Docket No. 11, Pl. Memo. at 6). Next month, on May 8, plaintiff reported to her physician assistant that she was distraught and somewhat depressed (R. 323; Docket No. 11, Pl. Memo. at 6). At a follow up appointment on May 15 2007, plaintiff complained of being "quite distraught" upon seeing an accident on her way to the appointment and her Paxil dosage was increased (R. 321; Docket No. 11, Pl. Memo. at 7). Plaintiff sought a refill of her medication, on July 7, 2007, saying that she was tired all the time and slept a lot, which ...


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