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Barlow v. Commissioner of Social Security

United States District Court, D. New Jersey

March 24, 2014

DAVID BARLOW, Plaintiff,

Robert A. Petruzzelli, Esq., Jacobs, Schwalbe & Petruzzelli, PC N.J. Attorney for Plaintiff.

Peter Jewett, Special Assistant U.S. Attorney Social Security Administration Office of General Counsel, New York, NY Attorney for the Commissioner of the Social Security, Administration.


JEROME B. SIMANDLE, District Judge.


This matter comes before the Court on Plaintiff David Barlow's appeal of the Social Security Administration's final decision denying his application for Disability Insurance Benefits under the Social Security Act. Because substantial evidence supports the Administrative Law Judge's finding that Plaintiff lacks credibility and is not disabled, and because any errors were harmless, the Court will affirm.


A. Procedural History

Plaintiff filed an application for disability benefits on July 6, 2011 alleging onset of disability on July 1, 2010. (R. at 202.) His application was denied initially and on reconsideration. (R. at 71, 89.) Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), which occurred on May 1, 2012. (R. at 140, 39.) The ALJ denied his application. (R. at 21-34.) Plaintiff requested and was denied review by the Appeals Council. (R. at 17, 1.) The ALJ's Opinion became the Commissioner's final decision. Plaintiff timely filed this action. This Court has jurisdiction to review the Commissioner's decision under 42 U.S.C. ยง 405(g).

B. Plaintiff's Statements

Plaintiff had a history of work as a tile setter. In his benefits application, Plaintiff said he was unable to work due to the residuals of back injuries, including chronic pain, poor sleep, depression, anger, frustration, and low tolerance for stress, and inability to cope with social situations. (R. at 202-09.) He said that, due to his injuries, he was unable to lift, bend, squat, push, pull, run, jump, or go on long walks. (R. at 203.) He stated that he "can't cook, clean, take out trash tie shoes, showering is extremely difficult, i [sic] take baths, dressing takes time" and "due to migraines can't go outside without powerful sunglasses." (R. at 236.) In subsequent paperwork, he wrote "I can't tie my shoes, get dressed without help." (R. at 247.) He wrote that he had become "very antisocial, short-tempered, [and] agitated in social situations." (R. at 206.) He emphasized: "Along with the difficulties of daily life I simply cannot perform the duties required of a Journeyman Tile Mechanic." (R. at 209.)

At his hearing, Plaintiff testified that he had lost 40 pounds over the past five or six years because depression and anxiety suppressed his appetite. (R. at 43-44.) He "usually ha[s] to take medication just to basically get out of bed." (R. at 49.) He sometimes walks his son to school three blocks away, six blocks roundtrip. (R. at 49.)

Plaintiff previously lived in a hotel; government assistance did not pay for the hotel. (R. at 50.) At the time of the hearing, Plaintiff was living rent-free with friends. (R. at 44.)

Plaintiff gave the friends with whom he lives the $2, 000.00 he received from his 2011 tax return. (R. at 44-45.) He had earned $7, 000.00 or $8, 000.00 in 2011 from three weeks at a tile company remodeling restaurants overnight, side work playing keyboards, and possibly one other job that he could not recall. (R. at 45.) When he worked the tile job, he lifted boxes weighing 25 to 30 pounds and got on his hands and knees to lay grout. (R. at 46.)

He does "nothing" during the day. (R. at 50.) He watches television, but sound and light hurt his eyes and he has migraines. (R. at 51.) He testified that he sleeps two hours a day, at most, and does not nap. (R. at 53.) He testified that he "[b]asically" "just sit[s]" for 22 hours a day. (R. at 55.)

He testified that he has constant back pain related to back surgery he had in 2004. (R. at 55.) He stated: "My left leg is numb 90 percent of the time, my right hip burns excruciatingly." (R. at 56.) He brought a cane to the hearing. (R. at 65.) A doctor did not prescribe the cane; Plaintiff began using it because "the numbness in my left leg and that burning hip, I just don't want to fall down stairs anymore." (R. at 65.) He testified that he has had the back pain, leg pain, and leg numbness since 2004. (R. at 59.)

He has migraines every day. (R. at 56.) He started medication for the migraines about one and a half or two months before the hearing. (R. at 64.) He also described problems in focus, attention, concentration, and memory. (R. at 63.)

He testified that he has urological problems and problems controlling his bowels. (R. at 69.)

He testified that he can stand for 15-30 minutes, sit for 10-15 minutes, and lift 20-25 pounds, although lifting causes pain the next day. Steps can be problematic, and he has fallen on them. (R. at 58.)

When asked why he became unable to work in 2010 when his impairments began years before, he said: "I was in denial.... I'm not functionary, I can't do what I used to be able to do.... And one of the major contributing factors was we were in Cherry Hill... and we had to try to lift this grill or something like that, and I - it hurt so bad that I literally did not get out of bed for a week." (R. at 63.)

Plaintiff had favorable settlements in worker's compensation and attorney malpractice cases. (R. at 65-67.) Plaintiff testified that he lacked health insurance for a period of time and that his current insurance would not pay for a back specialist and would only cover the family doctor. (R. at 67.)

C. Medical History

While working on December 30, 2002, Plaintiff fell down a flight of stairs and suffered lumbar disc herniation. (R. at 308-09.)

On March 9, 2004, Dr. Walden Holl examined Plaintiff and diagnosed him with "pre-existing severe personality disorder characterized by vague, disorganized and paranoid thinking, inadequate emotional responsiveness, preoccupation, anxiety and depression" and, related to the back problem, "an adjustment disorder with anxiety." (R. at 329.)

Plaintiff had a back operation on October 7, 2004, a spinal fusion at L4-L5. (R. at 357.) On April 6, 2005, Plaintiff consulted a urologist regarding sexual dysfunction and problems with voiding that began after the surgery. (R. at 360.) The urologist stated: "It appears that there has been ...

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