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, 42
U.S.C. § 405(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 42 U.S.C. § 423(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, 402 U.S. 389,
401 (1971). However, "[d]eference is not an absolute rule."
Thompson v. Sullivan, 987 F.2d 1482, 1490 (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, 20 C.F.R. §
404.1520, 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., 795 F.2d 1118, 1124 (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." Id. 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.
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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, 42
U.S.C. § 405(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 42 U.S.C. § 423(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, 402 U.S. 389,
401 (1971). However, "[d]eference is not an absolute rule."
Thompson v. Sullivan, 987 F.2d 1482, 1490 (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, 20 C.F.R. §
404.1520, 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., 795 F.2d 1118, 1124 (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." Id. 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.