Nabatoff v. SSA CV-97-232-SD 05/11/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Raphael M. Nabatoff

v. Civil No. 97-232-SD

Kenneth S. Apfel, Commissioner, Social Security Administration

O R D E R

Pursuant to section 205(g) of the Social Security Act,

(g), plaintiff Raphael M. Nabatoff seeks judicial

review of a final decision of the Secretary of Health and Human

Services denying his claim for disability insurance benefits.

Presently before the court are (1) plaintiff's motion to reverse

the Secretary's decision and (2) defendant's motion to affirm

same.

Facts

The parties' joint statement of material facts (document 8)

is herein incorporated.

Discussion

The Administrative Law Judge (ALJ) found that Nabatoff was

not disabled within the meaning of

(d), which defines "disability" as "inability to engage in any substantial

gainful activity by reason of any medically determinable physical

or mental impairment." On review, the ALJ's finding is entitled

to deference if supported by substantial evidence, which is "such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion." Richardson v. Perales,

(1971). However, "[d]eference is not an absolute rule."

Thompson v. Sullivan,

(10th Cir. 1993). For

the following reasons, the ALJ's finding that Nabatoff is not

disabled is not supported by substantial evidence.

In going through the five-step analysis,

, the ALJ considered only Nabatoff's physical impairment

related to his back, rejecting his mental impairment at stage

two. Dr. William Swinburne, a psychologist who evaluated

Nabatoff in 1995, diagnosed him with major depression and a

personality disorder. Administrative Transcript (Tr.) 152-53.

Without analysis, the ALJ asserted, "I find sufficient evidence

to justify the finding of a severe mental impairment . . . ."

Tr. 19. The First Circuit has noted that "the Step 2 severity

requirement is hereafter to be a de minimis policy, designed to

do no more than screen out groundless claims. . . . [A] finding

of 'non-severe' is only to be made where medical evidence

establishes only a slight abnormality or combination of slight

2 abnormalities which would have no more than a minimal effect on

an individual's ability to work . . . ." McDonald v. Secretary

of Health & Human Servs.,

(1st Cir. 1986).

It is clear that Nabatoff's claim of depression was not

groundless and had more than a minimal effect on his ability to

work. Dr. Swinburne reported, "I suspect he would not adapt well

to work or work-like situations, given his current frame of

mind." Tr. 152. There was no other medical evidence on record

which cast doubt on Dr. Swinburne's report.

Rather, the ALJ rejected Dr. Swinburne's report, believing

that it was based primarily on claimant's subjective complaints

of back pain, which the ALJ found to be less than credible.

First, in Dr. Swinburne's report, in reaching a diagnosis of

depression and evaluating its severity, he relied on more than

just Nabatoff's complaints about back pain. The report

attributes some of claimant's depression to his wife's leaving

him. The report also references several observations about

claimant's behavior during the evaluation, as well as "vegetative

signs such as decreased interest in food and decreased interest

in his usual activities." Tr. 150. Dr. Swinburne clearly relied

on his own observations, not just Nabatoff's subjective

complaints.

3 Second, even if the ALJ was correct that Dr. Swinburne's

report was based primarily on Nabatoff's subjective complaints,

the ALJ was incorrect in rejecting that report solely because he

found Nabatoff's complaints "out of proportion with the

physiological and anatomical findings of the examining

physicians." Tr. 17. Subjective complaints of pain may evince a

mental impairment regardless of whether those complaints are

grounded in physiological fact. In some cases, exaggerated

preoccupation with perceived pain may be symptomatic of mental

impairment. Thus the ALJ improperly rejected Swinburne's report

and improperly found that Nabatoff's mental impairment was

nonsevere.

In addition, the ALJ unreasonably found that "the medical

evidence does establish that the claimant would not be precluded

from performing a wide range of sedentary work which involves

lifting no more than twenty pounds at a time with frequent

lifting or carrying of objects weighing up to ten pounds without

prolonged standing and walking or continuous sitting." Tr. 18.

The only medical evidence on the record which tends to support

the ALJ's conclusion is the report of Dr. John F. Lawlis III,

which places Nabatoff in a "light sedentary work classification."

Tr. 135. However, Dr. Lawlis's report was prepared in 1989,

approximately seven years before the ALJ evaluated Nabatoff's

4 disability claim in 1996. In some circumstances, it is

appropriate for an ALJ to rely on seven-year-old medical

evidence. However, in this case, every physician who has

examined Nabatoff in the interim has been less optimistic about

his work capabilities. Dr. John A. Leppman examined Nabatoff in

1993, and in his report answered the following question: "What,

in your opinion, would be the probability of this client

returning to gainful employment if he/she is treated . . . .?"

Tr. 142. Dr. Leppman answered: "from a practical standpoint I

would doubt ability to resume regular employment."

In 1995

Dr. Leppman examined claimant again, noting that "[m]y previous

statements about his occupational capabilities still stand." Tr.

144. In a letter dated July 25, 1995, Dr. Leppman elaborated

further noting that "Mr. Nabatoff's combined problems do make

most vocational activities difficult, since any regular amount of

standing, walking, or carrying is going to be difficult for him,

and he also does have difficulty with sitting in one place for a

period of time." Tr. 145.

Dr. Roger Hansen examined Nabatoff in 1995 and noted that

"[h]e spends most of his time lying down. . . . The likelihood

of his showing any real improvement after these several years of

almost absolute inactivity is very poor . . . ." Tr. 147-48.

5 Lastly, as discussed above Dr. William Swinburne noted that

"I suspect he cannot tolerate many demands being placed on

him. . . . At present his back pain seems to so dominate his

life that work is not possible for him. As stated above, he

places minimal demands on himself, and I suspect he would not

adapt well to work or work-like situations, given his current

frame of mind." Tr. 152.

Simply because a patient's subjective complaints of pain

appear out of proportion to the physiological evidence does not

necessarily mean that those subjective complaints are not

credible evidence of the patient's psychological condition.

Blowing minor problems out of proportion may in fact be

symptomatic of certain psychological conditions.

In light of the apparent consensus among Dr. Leppman, Dr.

Hansen, and Dr. Swinburne that regular employment would be

difficult or impossible for Nabatoff, it was unreasonable for the

ALJ to rely solely on the seven-year-old report by Dr. Lawlis

that Nabatoff was capable of sedentary work.

For the foregoing reasons, the court reverses the ALJ's

findings and remands the case for further review. On remand, the

ALJ shall consider whether Nabatoff is disabled in light of his

combined mental and physical impairments. The ALJ shall not take

Dr. Lawlis's report as conclusive evidence that the claimant is

6 capable of performing sedentary work, but rather shall evaluate

the claimant's residual functional capacity in light of the more

recent opinions of Drs. Leppman, Hansen, and Swinburne.

Conclusion

As set forth herein, the Secretary's disability

determination is reversed and this case is remanded for a

reconsideration of plaintiff's eligibility for disability

insurance benefits in accordance with the provisions of this

order. Plaintiff's motion to reverse the Secretary's decision is

accordingly granted, and defendant's motion to affirm the

Secretary's decision is denied. The clerk shall enter judgment

accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

May 11, 1998

cc: Michael C. Shklar, Esq. David L. Broderick, Esq.

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