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Lewis v. Commissioner of Social Security

United States District Court, D. New Jersey

December 11, 2017

ROBERT J. LEWIS, Plaintiff,


          PETER G. SHERIDAN, U.S.D.J.

         Plaintiff 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 disability benefits.


         Plaintiff's 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

         At the 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.

         Adult Function Reports (“AFR”)

         Upon 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.

         In the 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. 272).

         He 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).

         On July 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).

         Reports and Evaluations with Regard to Plaintiff's Mental Health Conditions Records of the Veterans Administration in Lebanon, PA

         Plaintiff 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).

         On 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).

         In 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).

         Plaintiff 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).

         Mental Consultative Examination by Perry Shaw, M.D.

         On 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).

         Plaintiff 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).

         Dr. 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).

         On 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. 634)[1].

         Medical Reports and Evaluations with Regard to ...

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