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SIMONS v. HECKLER

July 22, 1983

Charles D. SIMONS
v.
Margaret M. HECKLER, Secretary of Health and Human Services



The opinion of the court was delivered by: WEINER

 WEINER, District Judge:

 This action was brought under 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health and Human Services ("Secretary") to terminate plaintiff's disability benefits under Title II of the Social Security Act, as amended. The plaintiff, Charles D. Simons ("Simons"), was originally found to have been disabled as of April 17, 1970 due to a psychotic depressive reaction which matched a disability listed in Appendix 1 to 20 C.F.R. § 404.1520(d). On March 16, 1982 the Disability Determination Division of the Social Security Administration notified Simons, after a review of his file, that his disability no longer precluded him from engaging in substantial gainful activity and that his disability benefits were being terminated. This determination was affirmed on reconsideration by the Social Security Administration. Simons, represented by counsel, presented his claim de novo before an Administrative Law Judge ("ALJ") who found that Simons' impairments no longer matched an impairment listed in Appendix 1 and that his impairments did not prevent him from engaging in substantial gainful activity of a sedentary nature as of March, 1981. This determination became the final determination of the Secretary when the Appeals Council denied review of the ALJ's decision on March 8, 1983.

 This matter is before us on cross-motions of the parties for summary judgment. For the reasons which follow we grant plaintiff's motion for summary judgment and reverse the decision of the Secretary.

 FACTS AND MEDICAL EVIDENCE

 Dr. Secunda, Simons' treating psychiatrist since 1973, has diagnosed him as having a borderline personality disorder with a poor prognosis. (Tr. 181) Dr. Secunda's therapy at this time is "primarily supportive" with only periodic visits (4 to 6 per year) and minimal medication. It was his medical opinion that there is little chance of Simons ever returning to the job market in any capacity. (Tr. 181)

 Simons was also examined, on May 2, 1982, by Leonard M. Paul, Ed.D., a psychologist and vocational expert, who reported that it was unlikely that Simons could engage in substantial gainful employment. (Tr. 170) Dr. Paul diagnosed Simons as having agoraphobia with panic attacks, psychological factors affecting his physical condition, and alcohol dependence. Dr. Secunda attributed such factors to Simons' borderline personality disorder. Both doctors reported that Simons' physical symptoms of weakness in the legs, chest pains and muscle spasming were a product of his psychological disorders.

 Dr. Goppelt, a psychiatrist, interviewed Simons at the request of the Social Security Agency on March 8, 1982 and found him to be "alert, polite, oriented and superficially cooperative" but also "insincere." (Tr. 153) Dr. Goppelt disagreed with the diagnosis of borderline personality disorder and instead reported that Simons' problems stemmed from chronic alcoholism. Dr. Goppelt did not report whether he felt that Simons' condition had originally been alcoholism or whether alcoholism had replaced a previous psychological disorder. Even with the diagnosis of chronic alcoholism, Dr. Goppelt stated that Simons' prognosis was poor. (Tr. 154) Dr. Goppelt made no evaluation of Simons' ability to work although he did report that Alcoholics Anonymous might be a better treatment than Simons' current psychotherapy. (Tr. 154)

 A vocational expert, Mr. Robert Wolf, testified at the administrative hearing as to the availability and suitability of employment after being advised of Simons' previous skills and certain hypothetical medical conditions. Mr. Wolf did not base his opinions on his own observations of Simons, but rather on the hypothetical situations posed by the ALJ. Mr. Wolf testified that if Simons suffered from the disabilities he alleged, then he would be unable to perform his previous work or transfer his prior skills to any other work. However, Mr. Wolf was able to list a number of occupations which Simons could engage in assuming, as he was asked to, that Simons "can get along with other people, relates with other people, that he is alert, he has a good memory, exercises good judgment." (Tr. 79-80) These occupations included credit analyst, small business loan analyst, general bookkeeping work, property manager, personel [sic] interviewer and office manager.

 ALJ FINDINGS

 The ALJ found that Simons' previous work as a certified public accountant required "substantial contact with co-workers and exceptional mental capabilities, particularly the ability to deal effectively with stress, mental pressure and frustration." (Tr. 15) He further found that Simons has a borderline personality disorder which, because of the nature of the disorder, prevents him from engaging in his previous work. However, Simons was found to be able to transfer his skills to the other sedentary jobs to which Mr. Wolf had testified. By accepting Mr. Wolf's testimony that Simons was able to engage in other specific jobs in the national economy, it appears that the ALJ relied upon the hypothetical situation which he posited in his presentation of Simons' case to Mr. Wolf. As noted earlier, that hypothetical situation required Mr. Wolf to assume that Simons could get along with other people and relate to them. This is contrary to the ALJ's basis for finding that Simons could not return to his previous work.

 SCOPE OF JUDICIAL REVIEW

 The process to be used by the ALJ in evaluating disability claims has been set out by the United States Court of Appeals ...


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