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Gilbert v. Astrue

United States District Court, D. Oregon, Portland Division

April 16, 2014

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendants.


JOHN V. ACOSTA, Magistrate Judge.

Plaintiff, John Patrick Gilbert ("Gilbert") filed this action under section 205(g) of the Social Security Act (the "Act") as amended, 42 U.S.C. ยง 405(g), to review the final decision of the Commissioner of Social Security (the "Commissioner") denying Gilbert's application for social security disability insurance benefits ("SSDI") and supplemental security income ("SSI"). The Commissioner affirmed the decision of the Administrative Law Judge Marilyn S. Mauer ("ALJ") finding Gilbert not disabled. The court concludes the Commissioner's decision should be reversed in part and remanded for additional administrative proceedings consistent with this opinion.


On or about October 17, 2008, Gilbert filed an application for SSDI and SSI alleging an onset date of August 28, 2008. The Social Security Administration initially denied Gilbert's application, and also denied his application upon reconsideration after a hearing in front of the ALJ. The Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner.


I. Factual Background.

Gilbert was born on January 2, 1969, and was 39 years old when he applied for SSDI and SSI in 2008. R. 326. He graduated from George Washington High School in Denver, Colorado, where he received a modified diploma after attending special education classes. R. 50, 182. His past relevant work experience includes telephone solicitor, hand packager, and security guard for several different employers, including Public Safety Warehouse, Northwest Direct of Eugene, Affordable Company USA, Gaylord Security, Pinkerton's, Action Security and Investigation, Burns International Security, and Pearl Buck Center. R. 51-54, 59-60, 62. The ALJ found Gilbert had not engaged in substantial gainful activity since August 28, 2008, and did not consider his last work attempt as a hand packager in 2009 at Pearl Buck Center to constitute substantial gainful work activity because that job lasted just nine days, and Gilbert earned only $535.50. R. 18, 62.

Gilbert alleges disability due to mental retardation and attention deficit (hyperactivity) disorder ("ADD/ADHD"). He also alleges his deteriorating memory makes it impossible for him to sustain employment. (Def.'s Br. at 2).

II. Medical Evidence.

Gilbert was examined by several doctors prior to the ALJ's final determination on his disability. Two psychologists, Dr. Charlotte Higgins-Lee, Ph.D. ("Dr. Higgins-Lee"), and Dr. Leia Hughey, Ph.D. ("Dr. Hughey"), performed psychological evaluations and IQ testing on Gilbert. State agency consulting Dr. Dorothy Anderson, Ph.D., ("Dr. Anderson") reviewed all of the evidence of record, including the psychologists' evaluations and Gilbert's employment history record, and determined Gilbert's mental residual functional capacity ("RFC"). Dr. Paul Rethinger, Ph.D., ("Dr. Rethinger") confirmed Dr. Anderson's RFC and other conclusions. Lyndsie Taylor, a disability analyst, also reviewed Gilbert's file and recorded her opinion about Gilbert's physical abilities. Gilbert's several treating physicians are also on record, and include Sarah Sheffield, F.N.P. (Family Nurse Practitioner) ("Nurse Sheffield"), Karen Woodson, F.N.P., ("Nurse Woodson"), Dr. Erica Spencer, M.D., ("Dr. Spencer"), and Judy McAtee, R.N. ("Nurse McAtee"). There were no medical experts at Gilbert's hearing; thus, all of Gilbert's medical evidence is contained in his medical records.

A. Dr. Higgins-Lee.

Dr. Higgins-Lee examined Gilbert on November 20, 2008, for a psychodiagnostic examination and IQ test. R. 249. Dr. Higgins-Lee based her ultimate opinions upon these two evaluations as well as Gilbert's subjective statements made to Dr. Higgins-Lee during the examination.

1. Gilbert's Subjective Statements to Dr. Higgins-Lee.

Because Dr. Higgins-Lee did not review Gilbert's employment records prior to seeing Gilbert, much of the information in her report is based on subjective statements by Gilbert. R. 249. When Dr. Higgins-Lee asked Gilbert about use of illicit drugs and alcohol, he made a joke instead of answering responsively, and he did not report any history of alcohol use or abuse. R. 250. Gilbert remembered four or five jobs in his life, working in security, telemarketing, and fast food. R. 250. Gilbert reported he is slow and forgets things often, which has been a life long problem and has impeded his ability to maintain steady employment. R. 250-51. Gilbert reported he lost many of his jobs because he could not remember procedures and would talk to coworkers when he was supposed to be working. R. 253. Dr. Higgins-Lee believed Gilbert appeared more capable than he actually was, and opined this could explain why Gilbert gets hired and then fired for dissatisfactory work given the employer's expectations. R. 253.

Gilbert was not able to keep his first appointment for a reason not explained in the record, but was on time for his second one. R. 250. Gilbert was in a good mood during the evaluation, his grooming was good, he filled out all of his intake forms independently, and he was cooperative and had good social skills during the exam. R. 250. Gilbert reported most days he would go out and actively try to find work, then watch television at home. R. 251. He is able to cook some familiar meals, but his fiance cooks most of the time. R. 251. He also said he occasionally does chores and can use a telephone. R. 251. Gilbert told Dr. Higgins-Lee he would need a job coach in order to keep a job, and that he is trying to start social security benefits. R. 251. Gilbert stated he handles his own finances, though growing up, he had difficulty learning to read, write, and do arithmetic, and had to wear glasses for his lazy eye. R. 250-51.

2. Intelligence Testing.

Dr. Higgins-Lee administered a WAIS-III intelligence test to determine Gilbert's IQ. R. 251. Dr. Higgins-Lee thought Gilbert made a good effort, and considered his scores reliable and valid. R. 251. The WAIS-III yields three IQ scores, and each measures a different area of intelligence. R. 252. Gilbert scored 66 on verbal IQ, 60 on performance IQ, and 61 on full scale IQ, which is below the average range. R. 252.

3. Dr. Higgins-Lee's Ultimate Conclusion.

Based on her examination, Dr. Higgins-Lee concluded Gilbert has a low level of working memory and difficulty concentrating. R. 252. She concluded he was able to read and write based on his filling out the intake forms, but noted his level of adaption was low because he was unable to do simple mental arithmetic. R. 252. Ultimately, she concluded that, considering Gilbert's low intelligence, impaired memory and concentration, and slow processing speed, there may not be many jobs he would be able to do. R. 253.

B. Dr. Hughey.

Dr. Hughey examined Gilbert on April 8, 2011 at Country Counseling, LLC, upon referral from Gilbert's attorney. R. 390. Dr. Hughey administered several evaluations, including an Assessment Interview, a Personality Assessment Inventory, a Repeatable Battery for the Assessment of Neuropsychological Status, a Rey Memory Test, and a Drug Screen Instant UA. R. 390. Dr. Hughey based her ultimate opinions Gilbert's subjective statements as well as the tests she administered.

1. Gilbert's Subjective Statements to Dr. Hughey.

Gilbert informed Dr. Hughey the reason he was seeing her was in aid of his application for SSDI and SSI benefits. R. 390. Gilbert reported he had no history of alcohol or drug abuse, and an Instant Screen UA tested negative for six common drugs. R. 391. Gilbert told Dr. Hughey he worked in the past but would not define any of his past work as successful employment. R. 390. He told her he was always "slow" and he was fired from jobs because his employers became frustrated and impatient with his inability to maintain a simple routine as well as his poor memory and frequent mistakes made during his employment. R. 390.

Gilbert reported he has a valid Oregon driver's license, but since he does not have a car, he does not drive, but instead takes public transportation. R. 391. He will travel only to familiar places, and gets help from his family when he needs to get somewhere new. R. 391. Gilbert also reported he is able to help out with chores around the house if he is reminded what to do, and is able to perform his own grooming and self-care. R. 391. He lives with his fiance, Ms. Joy Berry, and her 16-year-old son. R. 390. Though Gilbert used to be certified as a security guard, he currently has no vocational or education skills. R. 60, 391.

2. Personality Assessment Inventory.

Dr. Hughey evaluated Gilbert using the Personality Assessment Inventory ("PAI"). R. 392. The PAI assesses the validity of the test results. R. 392. Dr. Hughey noted Gilbert responded consistently to the test items, but also reported his response patterns indicate defensiveness about personal shortcomings and exaggeration of certain problems. R. 392. Dr. Hughey found Gilbert made an effort to present himself in a favorable light. R. 392. Further, although Gilbert's response patterns reveal obvious contradiction, Dr. Hughey concluded Gilbert was unable to register the inconsistencies of his responses. R. 392.

The PAI suggested Gilbert has significant thinking and concentration problems, is sensitive in social interaction, has poor judgment, and is distractible. R. 392. Dr. Hughey concluded that, given his PAI, Gilbert likely feels he is treated inequitably, his working relationships become strained, and he is unaffected by any effort to support or assist him. R. 392. Finally, Dr. Hughey noted Gilbert reported significant depressive experiences, including being sad and having thoughts of worthlesness, hopelessness, and personal failure, and Dr. Hughey concluded Gilbert likely feels self-critical and has a negative self-image. R. 392.

3. Repeatable Battery for the Assessment of Neuropsychological Status.

Dr. Hughey evaluated Gilbert with a Repeatable Battery for the Assessment of Neuropsychological Status ("RBANS"). R. 392. The RBANS measures cognitive function and yields a total score that "approximates IQ." R. 392. Dr. Hughey noted Gilbert's cognitive ability had not changed significantly since 2008, when Dr. Higgins-Lee evaluated Gilbert's IQ with a formal Wechsler Adult Intelligence Scale Third Edition ("WAIS-III") IQ test. R. 392. Gilbert scored a 54 on the intelligence portion of the RBANS exam. R. 393. He scored very low in the delayed memory portion, fairly low in the immediate memory portion, in the average range in the language portion, and very low in the visual perception portion of the exam. R. 393.

4. Rey Memory Test.

The Rey Memory Test is a simple memory task presented as a more difficult memory task. R. 393. The test helps screen for malingering and symptom magnification. R. 393. When a claimant takes the test and scores less than 9/15, the claimant is likely malingering or exaggerating his/her symptoms of low intelligence or memory impairment. R. 393. Gilbert obtained a score of 8/15 on the test. R. 393. Though Gilbert scored less than 9, which generally indicates symptom magnification, Dr. Hughey opined Gilbert's visual perception impairment coupled with "memory limitations" explained his lower score. R. 393.

5. Dr. Hughey's Ultimate Conclusion.

Based on Gilbert's test results and on her examination, Dr. Hughey concluded Gilbert has significant, chronic, and longstanding impairments in several areas, including visuospatial perception, delayed memory, and attention. R. 393. She stated Gilbert's functioning is extremely low. R. 393.

Dr. Hughey believed Gilbert guessed answers to test questions and that his guesses were farafield from the actual answer. R. 393. She stated he made matters worse by confabulating (fabricating imaginary experiences as compensation for loss of memory). R. 393. Dr. Hughey noted Gilbert is fairly well-adjusted to his impairments, and noted he can attend to his own self-care, use public transportation, and has a long-term relationship with a woman he plans to marry. R. 393. Finally, Dr. Hughey reported Gilbert has reasonably sound mental health, but his repeated loss of jobs was easily explained by his cognitive dysfunction. R. 393.

C. Dr. Anderson.

Dr. Anderson is the state agency consultant who reviewed Gilbert's record and provided the ALJ with Gilbert's mental residual functional capacity ("RFC"). Dr. Anderson reviewed Gilbert's medical records, employment records, and questionnaires submitted by Gilbert's previous employers which describe Gilbert's employment tenure and explain the reasons for his terminations. R. 269.

1. Medical Assessment.

Dr. Anderson evaluated the reports of Gilbert's previous doctors and adopted Dr. Higgins-Lee's IQ evaluation. R. 269. She concluded Gilbert had a slow processing speed, poor memory, and a low level of adaptation, though she noted he could use public transportation. R. 269.

2. Employment Assessment.

After reviewing Gilbert's employer questionnaires, Dr. Anderson stated several conclusions about Gilbert's work history. R. 269. First, Dr. Anderson found Gilbert could maintain normal production and quality standards at one job, and was ultimately fired for poor attendance. R. 269. Next, she noted Gilbert had been fired for attempting to sell drugs to another employee - an allegation Gilbert denied. R. 269. Further, she reported Gilbert did not need more supervision than other ...

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