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BRADFORD v. SECRETARY OF HHS

March 2, 1982

Alexander BRADFORD, Plaintiff,
v.
SECRETARY OF DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

Plaintiff Alexander Bradford brought this action under 42 U.S.C. § 405(g) seeking review of a final decision of the defendant Secretary of Health and Human Services ("Secretary") denying his application for Social Security disability insurance benefits. Based upon the pleadings, the administrative record and their respective memoranda of law, each party has moved for judgment in his favor. Plaintiff seeks reversal of the Secretary's determination and a direction to award benefits or, alternatively, a remand for a new hearing. The Secretary requests affirmance of his decision. For the reasons stated below, the Secretary's decision is reversed as not supported by substantial evidence, and, in view of the lapse of time, the Secretary is directed to establish a period of disability and pay benefits to plaintiff accordingly.

 Plaintiff was 30 years old at the time of the evidentiary hearing on his claim in November and December 1979, and has a high school equivalency diploma. For two years during 1968-1969, he had worked as a spray painter of cabinets and furniture and for the next eight years as a sanitation worker for the New York City Department of Sanitation. During that employment, he attended Kingsborough Community College at night, on a part-time basis, to take accounting courses, and supplemented his income by operating a record shop business with a partner from 1973-1976. He is married and has a 10-year old son.

 In August 1975 he suffered an injury to his head when he fell from a sanitation truck and struck the ground head first. He was rendered unconscious briefly, a laceration required stitches, and thereafter he began to have post-concussion headaches and balance and coordination problems. His disability claim, however, is based upon more serious subsequent head injuries, as indicated below.

 On March 13, 1977, without provocation, plaintiff was shot from behind five times, three of the bullets entering the back of his head and two in his back. He was hospitalized in critical condition with large fragments of bullet remaining in the occipital and mastoid regions of the skull. He was discharged from Brookdale Hospital on April 6, 1977, totally deaf in his right ear and suffering from periodic headaches, ringing or buzzing in his head several times a day, tearing and blurry vision, backaches, stiffness of the neck, numbness in his hands and loss of equilibrium when walking. On December 4, 1978, while still under medical treatment, plaintiff filed this application for disability benefits. *fn1" The medical evidence supporting it is briefly summarized below.

 From September 12, 1977 until March 27, 1978, plaintiff was treated by Dr. Augustus F. Kinzel, a board certified specialist in psychiatry and neurology. In addition to the sequelae noted above, Dr. Kinzel reported plaintiff's impairment in attention, feelings of terror and fear of being killed, sleep and mood paralysis, and sudden buckling of his left leg. His diagnosis was "post-traumatic neurosis and post-concussion syndrome." Tr. 182. *fn2" In his opinion, plaintiff's "improvement has been slow" and he is "still totally disabled by condition." He also observed that there was "No known drug treatment for this." Id.

 Dr. E. Bersen, specialty not identified, saw plaintiff once or twice a month from August 11, 1978 to February 22, 1979. His diagnosis was "Cephalgia, post-traumatic, severe, disabling," and noted that various regimens of treatment by analgesics and sedatives had produced no improvement. Tr. 191-92.

 Dr. Alexander Levine, a specialist in psychiatry and neurology, saw plaintiff twice in February 1979. Although finding plaintiff "neurologically negative," he noted that the foreign bodies in plaintiff's skull were sufficient reason for constant headaches, and expressed the opinion that plaintiff "should be considered to be totally disabled." Tr. 189.

 Dr. J. Trevor Lindo, a psychiatrist, began treating plaintiff on August 25, 1979, and had seen him about twice monthly up to the date of his report, December 14, 1979. He also testified at plaintiff's hearing. In sum, he found plaintiff suffering not only physical but even more severe emotional sequelae from the shooting incident. He noted that plaintiff had become increasingly and progressively isolated and withdrawn socially and vocationally, and even in his marital relatedness given to brooding, sullenness and silence, with a potential for explosiveness that could not be overlooked. Dr. Lindo felt that plaintiff was moderately severely impaired with restrictions on his ability to relate to other people and to function in all sorts of work settings of varying stresses.

 On behalf of the Bureau of Disability Determinations, plaintiff was examined by Dr. Arthur M. Meisel, a psychiatrist, on September 18, 1979. In his report of October 9, 1979, he agreed with Dr. Lindo that plaintiff's symptoms were consistent with a psychiatric disorder of moderate severity. He found plaintiff to have

 
"little structure or focus in his daily activities. Social and interpersonal relationships are characterized by isolation, withdrawal, aggression and anger. The capacity for effective integration of affective and cognitive experiences appeared moderately impaired. Judgment was within normal limits. Insight into his behavior and motivation was poor." Tr. 207.

 Dr. Meisel concluded that:

 
"The prognosis is guarded for recovery of personal, social and vocational capacity. This patient is unlikely to be restored to normal social, personal and vocational functioning within a period of 24 months." Id.

 His ultimate diagnosis was that in addition to a severe hearing loss, plaintiff suffered from a "Post-traumatic (gunshot) ...


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