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November 30, 2010


The opinion of the court was delivered by: McVerry, J.



Lawrence Aaron Bowser ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g), for judicial review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") which denied his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 ("Act"). This matter comes before the court on cross motions for summary judgment. (Doc. Nos. 12, 15). The record has been developed at the administrative level. For the following reasons, Plaintiff‟s Motion for Summary Judgment will be DENIED and Defendant‟s Motion for Summary Judgment will be GRANTED.


Plaintiff filed for DIB with the Social Security Administration on September 11, 2007, in which he claimed an inability to work due to disability as of February 16, 2007. (R. at 117 -- 119)*fn1 . Plaintiff was initially denied benefits on January 11, 2008. (R. at 68 -- 72). A hearing was conducted on October 24, 2008 at which Plaintiff was represented by counsel and testified.

(R. at 22). A vocational expert, Fred Monaco, also testified. (R. at 22). The Administrative Law Judge ("ALJ") issued his decision which denied benefits to Plaintiff on December 12, 2008. (R. at 9 -- 21). Plaintiff filed a request for review of the ALJ‟s decision to the Appeals Council, which request was denied on March 17, 2010, thereby rendering the decision of the ALJ as the final decision of the Commissioner. (R. at 1 -- 4).

Plaintiff filed his Complaint in this Court on May 12, 2010. Defendant filed an Answer on July 30, 2010. Cross motions for summary judgment followed.


The facts relevant to the present case are limited to the testimony and records that had been presented to the ALJ when rendering his decision. All other records newly submitted*fn2 to

the Appeals Council or this Court will not be considered. See DISCUSSION, infra at 14. Further,

the facts relevant to this case will be limited to those regarding Plaintiff‟s psychological limitations, only. Plaintiff did not challenge the ALJ‟s decision on the grounds that his determination with respect to Plaintiff‟s physical limitations was improper. See DISCUSSION,

infra at 14.

A. General Background

Plaintiff was born July 19, 1963, and was forty five years of age as of the date of the administrative hearing. (R. at 29). Plaintiff graduated from high school and received vocational training and an Associate Degree for electrical maintenance and construction technology. (R. at 31, 171, 220). Plaintiff achieved a 3.62 grade point average. (R. at 220). Prior to his claimed disability, Plaintiff worked both as a service manager and service technician for Reed Holmes, Inc. (R. at 171, 220). Plaintiff was enlisted in the United States Army from 1982 until 1986. (R. at 220). Plaintiff was married and lived at home with his wife and seventeen year old son. (R. at 219). Plaintiff‟s spouse was employed, and in addition to her income, Plaintiff was receiving worker‟s compensation payments. (R. at 27, 29 -- 30).

Plaintiff‟s claimed disability began following a work-related electrical shock when he struck an unmarked, buried powerline. (R. at 169, 171). Plaintiff continued to work the day he was shocked. (R. at 171). However, he began to experience psychological impairment following the accident. (R. at 171).

B. Medical History

Following his accident, Plaintiff was referred for magnetic resonance imaging ("MRI") of his brain on August 10, 2006. (R. at 184). Plaintiff was complaining of diminished cognitive functioning. (R. at 184). The MRI revealed no abnormality or trauma to the brain; Plaintiff‟s results were normal. (R. at 184).

Plaintiff was seen and treated for his alleged cognitive dysfunctions by neurologist Benjamin Smolar, M.D., from September 5, 2006, until September 4, 2007. (R. at 156, 176). Dr. Smolar began his treatment of Plaintiff by performing an electroencephalogram ("EEG") of Plaintiff‟s brain. (R. at 176). The EEG results showed no abnormalities. (R. at 176).

Plaintiff initially informed Dr. Smolar that he could no longer multi-task at work. (R. at 169). He also complained of feeling overmedicated and dazed after taking drugs prescribed by Dr. Smolar. (R. at 169). Plaintiff further complained that he had difficulty finding his words and frequently became lost while driving. (R. at 169). He reported no difficulties with his sleep. (R. at 161, 169). Plaintiff believed his symptoms were worst approximately three to four weeks after his accident, but that following that period he had been feeling better. (R. at 169). Dr. Smolar noted Plaintiff‟s earlier normal MRI results, and also found that upon completion of a mini mental status exam, Plaintiff had a normal score of thirty points out of thirty possible points. (R. at 170). Dr. Smolar concluded that Plaintiff presented with only subjective complaints, but that this was suggestive of postconcussive syndrome -- without the concussion. (R. at 170).

Throughout the course of his treatment with Dr. Smolar, Plaintiff continued to complain of the same symptoms. Plaintiff had difficulty processing information, had flat affect, felt dazed, had difficulty with words, and had difficulty with his vision. (R. at 156, 161, 163 -- 64, 165, 167). However, no physical abnormalities were ever found. (R. at 156, 165). Plaintiff was also still working during part of his treatment period with Dr. Smolar. (R. at 165, 167). He complained of difficulties completing work of which he was formerly capable. (R. at 167). Eventually, Plaintiff went to part-time status, and then quit altogether. (R. at 161, 165, 167). Dr. Smolar often noted that Plaintiff appeared to be cognitively "okay," or even improving. (R. at 156, 161, 163, 165, 167). Yet, Plaintiff did exhibit a short temper and bitterness. (R. at 156, 161). Plaintiff was recommended for cognitive rehabilitation therapy for his subjective complaints of cognitive difficulties. (R. at 168). Dr. Smolar noted on February 13, 2007, that Plaintiff‟s cognitive deficits could preclude working for the time being. (R. at 166). Outside of antidepressants and cognitive therapy, Dr. Smolar did not feel that he could provide Plaintiff with relief for his subjective complaints. (R. at 156, 162, 164).

On January 3, 2007, Plaintiff was evaluated by P. Christopher Coburn, Ph.D., for cognitive impairment. (R. at 171 -- 73). Dr. Coburn conducted an array of tests including the Test of Memory Malingering, Wechsler Memory Scale-III, and Wechsler Abbreviated Scale of Intelligence, amongst others. (R. at 171 -- 72). Plaintiff did not exhibit suboptimal performance, and was of average intelligence. (R. at 172). He was alert and oriented throughout the testing.

(R. at 172). No difficulty with concentration was noted. (R. at 172). Some difficulty with immediate and delayed recall was found. (R. at 172). Perceptual spatial ability showed no impairment, and the Hooper Visual Organization Test also reflected no impairment. (R. at 172). There was no evidence of impairment in the Plaintiff‟s language function. (R. at 172). There was also no evidence of impairment in executive functioning, and no impairment in organization or planning. (R. at 173).

Dr. Coburn indicated that the only significant findings with respect to Plaintiff‟s cognitive functioning were in the area of verbal learning and memory. (R. at 173). However, this was merely in the low-average range of functioning, and Dr. Coburn believed that Plaintiff could continue to experience improvement. (R. at 173).

Plaintiff received cognitive rehabilitation and adjustment counseling from Catherine Gazzo, M.Ed., from February 7, 2007 until September 4, 2007, after being referred by Dr. Smolar. (R. at 196 -- 205). Ms. Gazzo noted that Plaintiff suffered from cognitive deficits seen in those who have sustained mild traumatic brain injury. (R. at 205). Ms. Gazzo determined that the use of compensatory aids and strategies would help Plaintiff cope with his deficits. (R. at 205). She also provided him with education and support. (R. at 205). She suggested more intensive therapy, but Plaintiff declined. (R. at 206).

Over the course of treatment, Ms. Gazzo noted that Plaintiff felt mentally stressed, exhausted, and behind in his work. (R. at 202). Ms. Gazzo indicated that even working part-time was difficult for Plaintiff. When he was not working, no one took his place, and his workload accumulated to unreasonable levels. (R. at 202 -- 05). Ms. Gazzo noted complaints by Plaintiff that were similar to those made to Dr. Smolar. (R. at 196 -- 205). After quitting his former employment, Ms. Gazzo observed that Plaintiff continued to have the same subjective complaints. (R. at 201). Plaintiff did resume participating in hobbies he enjoyed prior to his accident, but felt no satisfaction when engaging in these activities. (R. at 201).

Ms. Gazzo indicated in her notes on May 21, 2007, that Plaintiff was no longer striving to make improvements in his condition or to return to his "old self." (R. at 199). Plaintiff was presented with a recording device to aid him with remembering and completing tasks. (R. at 203). He returned it after one use, because it allegedly did not help. (R. at 200). Plaintiff complained that his memory seemed to be worsening; however, Ms. Gazzo found that a recent questionnaire completed by Plaintiff indicated that his memory had improved since February of 2007. (R. at 199). Plaintiff was noted as using the strategies learned in therapy to cope with his cognitive deficits, that he had removed himself from over-stimulating environments, and that he was considering taking antidepressants. (R. at 198). However, Plaintiff quit using a prescribed antidepressant after three weeks. (R. at 197). He found the side-effects to be too unpleasant. (R. at 197). Plaintiff was unwilling to try another antidepressant. (R. at 196).

By July of 2007, Plaintiff informed Ms. Gazzo that he had noticed some "good things" that resulted from his accident, including an improved ...

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