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Gibson v. Commissioner of Social Security Administration

United States District Court, D. Arizona

October 10, 2018

Robert Dale Gibson, Sr., Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Honorable Deborah M. Fine United States Magistrate Judge

         Plaintiff Robert Dale Gibson, Sr., appeals from the denial of his application for benefits from the Social Security Administration. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and, with the parties' consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). The Court will remand for an award of benefits.

         Standard of Review

          This court must affirm the ALJ's findings if they are supported by substantial evidence and are free from reversible error. Marcia v. Sullivan, 900 F.2d 172, 174 (9thCir. 1990). Substantial evidence is more than a mere scintilla, but less than a preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In determining whether substantial evidence supports the ALJ's decision, the court considers the record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to support the ALJ's determination, the Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9thCir. 1990). Thus, the Court must affirm the ALJ's decision where the evidence considered in its entirety substantially supports it and the decision is free from reversible error. 42 U.S.C. § 405(g); Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).

         Analysis

          In August 2014, Gibson was evaluated at the request of the State agency by Robin Potter, Psy.D. (Tr. 845-57) In her subsequent written report, Dr. Potter concluded that Gibson had Post Traumatic Stress Disorder, Chronic; Major Depressive Disorder, moderate; Anxiety Disorder NOS; and Alcohol Abuse [as per history]. She also concluded that he did “not appear COMPETENT to manage benefit payments.” (emphasis in original) (Tr. 854)

         In her opinion, the ALJ found that Gibson was not disabled and, in doing so, gave Dr. Potter's opinion “partial weight.” (Tr. 30) The relevant paragraph of the ALJ decision stated as follows:

The undersigned gives partial weight to the opinion of consultative examiner, Robin Potter, Psy.D., that the claimant would have moderate problems in a work-like setting with regard to his persistence and his poor affect tolerance and that his prior aggravated assault charge would likely be a significant problem in a work setting. Dr. Potter's opinion that the claimant would have moderate problems with regard to his persistence is not fully consistent with the facts that the claimant normal mental status examinations, his memory became stable on Aricept, and his cognitive performance on tests was questionable, Ex. B23F/2; B29F; B40F/1. He can persist to drive, to participate in group therapy, to watch TV shows and to play computer games on the phone.
However, the undersigned agrees with Dr. Potter's assessment that the claimant would have some problems socially due to the claimant's prior problem with anger management. Nevertheless, the undersigned finds that the claimant has developed skills to work with others after attending group sessions, a fact that Dr. Potter, herself, noted in her report. Ex. B11F/13

(Tr. 30) On appeal, Gibson argues that the ALJ should not have discounted Dr. Potter's opinion. (Doc. 24 at 1-2)

         Assuming without deciding that Dr. Potter's opinion was controverted by the State agency's medical consultant, the ALJ needed to justified the reduced weight by providing “specific and legitimate reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). (Tr. 29) The Court has reviewed the relevant portions of the record and concludes that the ALJ has not provided sufficient reasons for discounting Dr. Potter's opinion.

         First, the ALJ pointed to Gibson's “normal mental status examinations.” (Tr. 30) The accompanying citations did not refer to a mental status examination but Gibson did have a neuropsychological examination in April 2013 that included a Mini-Mental Status Exam (“MMSE”).[1] (Tr. 382) Dr. Potter also administered a Mental Status Exam. (Tr. 853) Gibson's score was 28/30 in April 2013 and 27/30 with Dr. Potter in August 2014. (Tr. 382, 853) In other words, Dr. Potter made her recommendations about Gibson's capabilities based on a 27/30 score. The ALJ opinion does not explain, and it is not apparent to the Court, how a 28/30 score is so inconsistent with a 27/30 score that it can justify assigning reduced weight to Dr. Potter's opinion.

         Next, the ALJ notes that Gibson's “memory became stable on Aricept” and cites to a medical note where Gibson self-reported that he felt “better with Aricept. He thinks his memory is stable.” (Tr. 30 citing 1416) Although its uses are not known to the Court, it appears that Aricept is a medication used for those suffering from memory loss.[2] This leads to the inevitable question about the reliability of a self-report about memory from someone who has been diagnosed with memory problems.

         Finally, the ALJ noted that Gibson's “cognitive performance on tests was questionable.” (Tr. 30 citing Tr. 1332-35) This statement appears to be the ALJ's interpretation of Gibson's neuropsychology assessment from September and October 2015. (Tr. 1332-35) The assessment concluded that “[h]is performance on symptom validity testing was below optimal levels, which raises questions regarding the validity of the current cognitive tests. . . .his emotional/psychiatric status could not be validly assessed. Overall, performance validity was below optimal levels, which precludes an accurate/valid assessment of his current functioning at this time.” (Tr. 1335) In other words, the ...


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