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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Robert Dale Gibson, Sr., 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-3914-PHX-DMF 

ORDER 

 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 (9th

Cir. 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. 
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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 (9th

Cir. 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 
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“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 

 

1

 The ALJ opinion cited to B23F/2 which is a page from a Patient Progress Note written after one of Gibson’s outpatient counseling session. (Tr. 1254) There is no reference to a mental status examination on this page or in this Note. (Tr. 1253-55) The MMSE, referenced elsewhere in the ALJ’s opinion, was properly cited as B2F. (Tr. 28) It seems that the simplest explanation—an extra number added in error to the cite—is the most 

logical. 

2

 The same medical note states that Gibson “was seen by Dr. Gorman for memory problems and was started on Aricept.” (Tr. 1416) 
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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 neuropsychologist stated that the conclusions from his testing were 

“questionable” because the testing could not be validated. This is not the same as 

questioning his performance on the tests. 

 The ALJ’s subsequent series of justifications—Gibson’s ability to drive, 

participate in group therapy, watch television, and play games on his phone—do not 

show that Gibson can work and instead fall squarely into the category of daily activities 

that do “not in any way detract from her credibility as to her overall disability. One does 

not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 

F.3d 1044, 1050 (9th Cir. 2001). Accordingly, these explanations are not sufficient 

reasons to afford partial weight to Dr. Potter’s opinion. 

Elsewhere, the ALJ’s opinion stated that Gibson was “adequately groomed at the 

exam with” Dr. Potter. (Tr. 37) This is an incomplete description of Dr. Potter’s report 

which stated in the narrative Source Statement that Gibson “was unshaven and 

marginally groomed. He reportedly had not showered for a week and half. . . He appears 

overly dependent on his family to ensure that he showers and takes his medication.” (Tr. 

856-57) 

Finally, at the hearing on this matter, Vocational Expert (“VE”) Marcus Molinar 

testified. (Tr. 70-80) When presented with the limitations from Dr. Potter’s opinion, VE 

Molinar testified that those restrictions “would preclude somebody from working.” (Tr. 

76) In other words, when presented with the opinion from the agency’s consultative 

examiner, the agency’s Vocational Expert concluded that someone with Gibson’s 

limitations could not work. 

. . . 

. . . 
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Remand

 The decision to remand a case for additional evidence or for an award of benefits 

is within the discretion of this court. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 

1989). The court can remand a case with instructions to award benefits when 

(1) the record has been fully developed and further administrative 

proceedings would serve no useful purpose; (2) the ALJ has failed to 

provide legally sufficient reasons for rejecting evidence, whether claimant 

testimony or medical opinion; and (3) if the improperly discredited 

evidence were credited as true, the ALJ would be required to find the 

claimant disabled on remand. 

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Here, all three parts of this test 

have been met. First, the record was fully developed for the fixed time period at issue 

and further administrative proceedings would impermissibly allow the “ALJ to have a 

mulligan.” Id. at 1021. Second, as described above, the ALJ did not provide a sufficient 

explanation for rejecting the opinion of the consultative examiner. Finally, if the ALJ 

had provided great weight to Dr. Potter’s opinion, the ALJ would have found that Gibson 

was disabled. 

 IT IS THEREFORE ORDERED that Robert Dale Gibson, Sr.’s claim for 

disability is remanded to the Commissioner of the Social Security Administration for an 

award of benefits. 

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 

accordingly. The judgment will serve as the mandate of this Court. 

 Dated this 10th day of October, 2018.