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Durbin v. Astrue

January 15, 2010

STEPHEN NOAH DURBIN, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

Plaintiff Stephen Noah Durbin appeals the Commissioner's denial of his application for disability insurance benefits under the Social Security Act. This Court has jurisdiction. 42 U.S.C. § 405(g). The parties have filed cross-motions for summary judgment. Plaintiff's Motion for Summary Judgment (d/e 9); Defendant Commissioner's Motion for Summary Affirmance (d/e 13). For the reasons set forth below, the Commissioner's Motion for Summary Affirmance is ALLOWED and Durbin's Motion for Summary Judgment is DENIED. The Decision of the Commissioner is AFFIRMED.

STATEMENT OF FACTS

Durbin was born on October 3, 1964. Durbin graduated from high school. He spent over 20 years working as an agricultural chemical salesman/delivery driver. Answer (d/e 7), attached Certified Record of Proceedings before the Social Security Administration (hereinafter R.) 76-77, 105. In 2002, Durbin was in an automobile accident in which his vehicle rolled over. He was unconscious for ten to fifteen minutes and suffered serious injuries, including broken ribs and damage to his lung. R. 150, 396. In 2004, Durbin started having panic attacks and seizures. The seizures are referred to in the record by various terms, including seizures, spells, fainting spells, passing out and sleep attacks. Durbin became unconscious during the seizures. On May 28, 2004, Durbin went to see a psychiatrist, Obul Reddy, M.D. R. 169. Dr. Reddy diagnosed Durbin as suffering from post traumatic stress disorder and depression. Durbin saw Dr. Reddy regularly thereafter. By October and November 2004, Dr. Reddy stated in his notes that Durbin was doing better on prescribed medications, but still had trouble in crowds. R. 167-68.

Durbin alleged that December 17, 2004, was the onset date of his disability. According to Durbin, he was having difficulty with absenteeism and performing his duties due to his panic attacks and seizures. He testified that his job required him to drive to farms to sell products and also to apply the products. He stated that he could no longer perform the job because of his seizures or fainting spells, and because of his increased absenteeism due to his mental problems. His employer could not tolerate the problems anymore and terminated his employment. He has not worked since. R. 374, 391.

On January 24, 2005, Durbin went to see a neurologist, Claude J. Fortin, M.D. Durbin told Dr. Fortin that he was having "near daily" fainting spells. R. 230. Durbin told Dr. Fortin that his panic attacks were controlled with medication. R. 230. Dr. Fortin ordered a CT scan and an EEG. Both were normal. R. 147, 131, 231. Dr. Fortin diagnosed possible sleep apnea, obesity, post traumatic stress disorder, and recurrent syncope (i.e., fainting) due to sleep deprivation. R. 232.

On March 10, 2005, Durbin went to see David Kiel, M.D., for a follow-up visit for sinus congestion. Durbin reported having fainting spells about once a week. R. 316-18. Durbin underwent a sleep study on March 17, 2005. R. 144-46. The sleep study confirmed Dr. Fortin's sleep apnea diagnosis. Dr. Fortin stated in his notes that Durbin's fainting spells were likely attributable to his sleep apnea. R. 229. Durbin saw Dr. Fortin again on May 2, 2005. Durbin reported at that time that a CPAP machine helped him sleep better, but he still was having sleep attacks about twice a week.

R. 226.*fn1 A second EEG was performed on May 17, 2005. The test showed no abnormalities or epileptic activity. R. 130, 222.

Durbin saw Dr. Reddy on a regular basis in 2005. In March and May 2005, Durbin told Dr. Reddy that he was still passing out, but was doing well socializing, going to restaurants, and doing well in crowds. R. 166. In June 2005, Durbin told Dr. Reddy that he had no panic attacks and had gone on several fishing trips with his children. R. 165. In July 2005, Durbin told Dr. Reddy that he was still having fainting spells and was not driving, but was doing better emotionally and was walking daily and exercising. R. 165.

Durbin saw Dr. Reddy two times in September 2005. On September 6, 2005, Durbin told Dr. Reddy that he was not motivated and not involved in activities, and Dr. Reddy changed his medication. R. 164. On October 4, 2005, Durbin told Dr. Reddy that his new medication made a significant difference. He felt optimistic and had no panic attacks. R. 162. Durbin stated that he still was passing out. R. 162.

At Durbin's November 1, 2005, appointment with Dr. Reddy, he stated that the medications were working well and that he felt motivated.

R. 161. He still had fainting spells, which made him afraid to drive. Dr. Reddy noted that the panic attacks and phobic avoidance had not changed even on medication. Dr. Reddy's notes, however, stated that the medications were helping in that Durbin was not depressed and was "going out", "doing stuff", and "enjoying life." R. 161.

Durbin saw Dr. Reddy again on November 22, 2005. Durbin stated that his medication was helping and that he had no panic attacks. Durbin talked to Dr. Reddy about his disability application. Dr. Reddy wrote in his notes that Durbin suffered from panic attacks, phobic reactions, severe depression, severe anxiety attacks, and physical problems that were disabling for the next six to eight years, "if not permanently." R. 160.

Durbin saw Dr. Reddy twice in January 2006, and three times in March 2006. Dr. Reddy's notes from the March 27, 2006 session stated that Durbin was still passing out, but his medications were helping him feel like "doing stuff." R. 154.

On March 7, 2006, a psychologist, Dolores S. Trello, Psy.D., examined Durbin for a state agency. R. 148. Dr. Trello did not review medical records as part of her evaluation of Durbin. Dr. Trello reported that Durbin's chief complaint was his fainting spells or seizures. He told Dr. Trello that the spells were not controlled with medication. He reported to Dr. Trello that he also suffered from post traumatic stress disorder, claustrophobia, and panic attacks. He stated that the panic attacks were controlled with medication. R. 148. Dr. Trello's mental status examination found nothing remarkable. R. 150. Dr. Trello diagnosed Durbin as having panic disorder with agoraphobia and post traumatic stress disorder. Dr. Trello assessed Durbin's Global Assessment of Functioning (GAF) at 50 and noted "serious impairment in vocational and interpersonal functioning since his accident on December 17, 2004." R. 151.

On April 3, 2006, a state agency reviewer Erika Altman, Ph.D., opined that Durbin had mild limitations in activities of daily living and in maintaining social functioning, and moderate limitations in maintaining concentration, persistence, and pace. R. 180. She opined that Durbin could understand simple and detailed instructions, sustain concentration and persistence at work, interact appropriately with others, and adapt to changes at work. R. 186. She further opined that Durbin could perform multi-step tasks. R. 186. Another reviewer affirmed her opinion. R. 189.

On April 4, 2006, another agency reviewer, Virgilio Pilapil, M.D., opined that Durbin could lift 20 pounds occasionally and 10 pounds frequently, but could not climb ladders, ropes, or scaffolds, and could not be exposed to hazards. R. 190-97. Another reviewer affirmed these opinions. R. 199.

In May 2006, Dr. Fortin diagnosed Durbin with complex seizures, obesity, sleep apnea, post traumatic stress disorder, hypogonadism, and B12 deficiency. R. 206-07. During this period, Dr. Fortin had Durbin undergo intracranial and neck angiograms, a brain MRI, and a video EEG. All of the test results were normal or unremarkable. After conducting these tests, Dr. Fortin changed his diagnosis to post traumatic stress disorder, hypogonadism, sleep apnea, and spells of an ...


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