United States District Court, D. New Jersey
ROBERT J. LEWIS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
Robert J. Lewis ("Plaintiff") appeals from the
final decision of the Commissioner of Social Security
("Commissioner"), denying Plaintiff disability
benefits under the Social Security Act of 1935 (the
"Act"). Plaintiff claims he was disabled due to
anxiety, depression, calcium deposits in his kidneys, and a
traumatic brain injury he had suffered years before. (R.
260). Plaintiff seeks an award of benefits for the period of
June 1, 2009 through December 31, 2013. On April 30, 2014 an
Administrative Law Judge (“ALJ”) concluded that
Lewis was not disabled, and issued a written decision denying
his application. After reviewing the administrative record
and arguments, this Court finds that the decision by the ALJ
is supported by substantial evidence of the administrative
record and affirms the ALJ's decision to deny Plaintiff
application, filed on October 28, 2010, claims disability
beginning on June 1, 2009, was denied in part because of
material drug and alcohol abuse (R. 97). Background
time of his initial application, Plaintiff was a forty-nine
year old male. Plaintiff was never married, but has two
children who stay with a past partner. He has a high school
diploma and two additional years of studying boiler
operation. Plaintiff was in the Navy between 1980 and 1982.
On an unspecified date during his two years of service,
Plaintiff ran headfirst into a metal bulkhead while aboard a
ship, reportedly losing consciousness for an unspecified
amount of time before recovering and returning to work. After
an honorable discharge, Plaintiff worked in plumbing, but
reportedly had trouble holding down jobs for various reasons,
including behavioral, mental, and personal issues. Plaintiff
last held a job in 2009, but has taken part in a paid therapy
program through the Department of Veteran Affairs
("VA"). Plaintiff has been unsuccessful finding
work. Plaintiff has a history of smoking, drinking, drug
abuse, and homelessness.
Function Reports (“AFR”)
applying for disability benefits, applicants must fill out an
Adult Function Report in order to describe their daily
activities and limitations in their own words.
Plaintiff's first report, Plaintiff reported a typical
day consisted of "networking through friends for
assistance, " doing laundry, watching DVD's, and
worrying about his current situation (A.R. 270). He currently
has trouble sleeping, sometimes drinking to calm himself
prior to bed (A.R. 271). Plaintiff reports he is able to
self-groom, dress, bathe, shave, and use the toilet (A.R.
271). Plaintiff reports a distrust of the medication
prescribed for his anxiety. He is capable of cooking for
himself, doing laundry, and cleaning his apartment (A.R.
reports feeling isolated with no family in New Jersey (A.R.
273). He entertains himself by drawing, playing guitar, and
reading sci-fi (A.R. 273). He does not drive a motor vehicle
because he has no valid driver's license, but he does
walk and commute through public transit (A.R. 273). He shops,
but spends money on alcohol to “medicate [his]
anxiety" since becoming ill (A.R. 82, 273). Plaintiff
reports that while he enjoys watching football and baseball,
he must drink in order to relax, continues to worry about
becoming homeless again, and that he still has trouble
getting along with others due to his "brash...brutally
honest" and intimidating nature (A.R. 274). Plaintiff
notes that due to his condition, he has trouble lifting,
squatting, climbing stairs, understanding verbal directions,
following instructions, and getting along with others (A.R.
274-75). Plaintiff also notes that his urine is often bloody
(A.R. 275). He has trouble breathing (A.R. 276). He finds he
has difficulty with authority figures because he finds that
he "lack[s] power, " and that he has been
terminated from prior jobs because he lacks the ability to
understand the feelings of others, and that he handles stress
poorly (A.R. 276). Finally, Plaintiff notes he has a mass on
the frontal right lobe of his brain, possibly as a result of
the injury while in the Navy (A.R. 277). He reports that he
suffers from partial diaphragmatic paralysis, anxiety, and
depression (A.R. 277).
5, 2012, Plaintiff completed a second Adult Function Report
with several differences compared to the earlier one. At that
time, Plaintiff resided at a Veteran's Administration
hospital (A.R. 292). He regularly checks the medical board
for appointments, retrieves his mail, and goes to therapy
(A.R. 292). Plaintiff no longer cooks for himself since the
hospital staff prepares his meals, but he continues to do his
own laundry and clean up after himself (A.R.294). He now
considers church and his therapy sessions to be his main
priorities, and that he does not socialize outside of church
(A.R. 296). Plaintiff specifies he was once laid off because
he did not go about a repair according to the directions of a
supervisor and lashed out when he argued the result was the
same (A.R. 297).
and Evaluations with Regard to Plaintiff's Mental Health
Conditions Records of the Veterans Administration in Lebanon,
was admitted to the Veteran's Administration Hospital in
Lebanon, Pennsylvania on September 11, 2008. On November 8,
2008, Plaintiff underwent an MRI with Dr. Eric Netland. The
report found a mild encephalomalacia (softening of brain
tissue) in the Plaintiff's frontal lobe, consistent with
reported injury from his Navy days. No other mass,
hemorrhage, lesions, or shifts were noted (A.R. 351-55).
November 20, 2008, Plaintiff attended a psychology
appointment, and was examined by psychologist Diane Hoover.
Plaintiff was observed to be aware of his surroundings, well
groomed, but angry upon realizing he was only meeting with a
psychology technician and not the psychologist herself (A.R.
380). Plaintiff spoke of his injury while in the Navy, but
"stressed more than once in the assessment that he [had]
not experienced any memory or cognitive difficulties as a
result of the injury" (A.R. 381). Plaintiff was noted to
have an IQ of higher than 79% of his peers, relatively
consistent with his story of having an IQ test score of 157
from grade school (A.R. 381). He also scored average or
slightly above average in other areas like verbal reasoning,
nonverbal reasoning, symbol search, and working memory (A.R.
381-83). He was found to have lower than average results when
recalling new information, and was noted to be combative and
aggressive (A.R. 382).
Plaintiff's discharge notes, Dr. Errol Aksu and physician
assistant Richard Emler found that Plaintiff suffered from
alcohol dependence, cocaine abuse, marijuana abuse, anxiety
disorder, obesity, chronic sinusitis, psoriasis, asymptomatic
right hemidiaphragm paresis, mild encephalomalacia in the
frontal lobe, chronic anxiety, and depression (A.R. 367-68).
He registered a global assessment of function
("GAF") of greater than 60 (A.R. 367). Smoking
cessation was recommended, but declined, and Plaintiff was
advised against further head injury and drug usage (A.R.
368). Psychopharmacologic treatment and psychotherapy were
both advised, but Plaintiff declined. (A.R.368). Plaintiff
was discharged as competent and employable (A.R. 368).
returned to a VA hospital, this time in East Orange, New
Jersey, on January 7, 2011 to see psychologist Bennett
Oppenheim, Ph.D. (A.R.651-55). Dr. Oppenheim found Plaintiff
to be suffering from numerous ailments, opining that
"[Plaintiff] has severe behavioral and psychological
consequences as a direct result of his history of traumatic
brain injury" (A.R. 651). Plaintiff's memory and
concentration was poor, he engaged in erratic and
unpredictable behavior, though he was found to be capable of
self-care (A.R. 651). Plaintiff was also noted to suffer from
headaches, frequent tinnitus, and a sensitivity to bright
lights (A.R.652). In addition to having trouble sleeping, the
examiner noted he was prone to aggressive outbursts, suffered
from severe memory impairment, and an inability to perform
the Serial 7's exercise or recall any of three randomly
presented objects at a later time, a common mental assessment
exercise (A.R. 652). Finally, although Plaintiff was found to
lack homicidal and suicidal thoughts, he still exhibited
impaired impulse control, insight, and judgment, and
continued to abuse alcohol and marijuana (A.R. 652-53). The
examining physician concluded Plaintiff "demonstrates
total and complete impairment, both on an occupational and
societal level" (A.R. 655).
Consultative Examination by Perry Shaw, M.D.
January 22, 2011, Plaintiff visited psychiatrist Dr. Shaw for
a consultation examination ("CE"). (A.R. 631-34).
Dr. Shaw observed that Plaintiff was obese, weighing 292
pounds, and was openly confrontational with people (A.R.
631). Plaintiff believed himself to be "very, very
smart" and liked to give authority a "hard
time" (A.R. 632).
reported to Dr. Shaw that his Navy injury resulted in profuse
bleeding, unconsciousness for no more than a few minutes, and
required a few sutures, but otherwise resulted in no amnesia
and it was reported that he did not suffer headaches as a
result, only "pressure" (A.R. 632). Plaintiff was
evasive about the actual details of his substance abuse,
claiming he no longer partakes in alcohol, marijuana, or
cocaine, but admitted to previous cocaine abuse daily until
2004 (A.R. 632).
Shaw noted during the mental assessment that Plaintiff was
comical about his "cutthroat family, " recording
that he joined the Navy looking for fun, how he was punished
unofficially via Captain's Mast on several occasions for
vague, unspecified reasons, and how he evasively dodged
questions about his two teenage sons who currently reside
with an ex-partner (A.R. 632-33). Plaintiff admitted his
driver's license was suspended due to non-payment of
child support (A.R. 633).
examination, Plaintiff was well groomed, handled himself
appropriately, was well spoken, and had a normal range of
psychomotor activity (A.R. 633). He was also well oriented to
time, place, and time, he was able to recall three words
after three and five minutes, could recall past events, and
was able to follow simple directions (A.R. 633). Plaintiff
appeared capable of taking care of everyday chores like
cooking, cleaning, and laundry (A.R. 633). While Plaintiff
continued to show signs of evasive thinking, he was able to
spell the word "WORLD" backwards and forwards,
quickly add and subtract Serial 7's, and did not appear
delusional (A.R. 633). He was able to concentrate, did not
appear withdrawn, and still had a sense of insight, though he
did seem paranoid and intent on controlling the interview
(A.R.633). Dr. Shaw concluded by noting that Plaintiff does
have a few friends, is capable of everyday living, and,
assuming he does not abuse drugs any longer, Plaintiff
"is capable of handling benefits on his own behalf"
(A.R. 633- 34). The final diagnostic impression was a
remission in alcohol, cocaine, and marijuana dependencies,
panic disorder, a personality disorder with passive
aggressiveness, with several narcissistic and antisocial
traits. Dr. Shaw assessed a GAF of 41-50 (A.R.
Reports and Evaluations with Regard to ...