United States District Court, D. Arizona
J. MttKovich United Stales Magistrate Judge
Abir Qafisheh brought this action pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of a final decision by
the Commissioner of Social Security
(“Commissioner”). Plaintiff raises four issues on
appeal: 1) the Administrative Law Judge (“ALJ”)
erred by finding Plaintiff's anxiety and depression
non-severe and not including any mental health limitations in
the residual functional capacity (“RFC”)
assessment; 2) the ALJ gave inappropriate weight to the
treating physician opinion; (3) the ALJ failed to provide
clear and convincing reasons to discount Plaintiff's
subjective symptom testimony; and 4) the ALJ failed to
resolve a conflict between the vocational expert
(“VE”) testimony and the Dictionary of
Occupational Titles (“DOT”). (Doc. 16).
the Court are Plaintiff's Opening Brief, Defendant's
Response, and Plaintiff's Reply. (Docs. 16, 20, &
21). The United States Magistrate Judge has received the
written consent of both parties and presides over this case
pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal
Rules of Civil Procedure. The Court finds that the ALJ erred
in finding Plaintiff's mental impairments were not severe
at Step Two of the evaluation process and failing to include
any nonexertional limitations in the RFC assessment. This
error was not harmless, and the Court will remand this matter
for further administrative proceedings.
filed a Title II application for social security disability
benefits on July 28, 2014 and a Title XVI application on
November 30, 2016. (Administrative Record (“AR”)
447, 488). Plaintiff alleged disability beginning on June 9,
2012 based on depression, back injury, knee injury,
fibromyalgia, arthritis, pancreatitis, and hepatitis C. (AR
342). Plaintiff's application was denied upon initial
review (AR 341) and on reconsideration (AR 354). A hearing
was held on November 30, 2016 (AR 291), after which ALJ
Yasmin Elias found, at Step Four, that Plaintiff was not
disabled because she could perform her PRW as a waiter. (AR
38). On July 28, 2017 the Appeals Council denied
Plaintiff's request to review the ALJ's decision. (AR
date last insured (“DLI”) for DIB purposes is
December 31, 2015. (AR 342). Thus, to be eligible for
benefits, Plaintiff must prove that she was disabled during
the time period of her alleged onset date (“AOD”)
of June 9, 2012 and her DLI of December 31, 2015.
Factual History 
was born on July 10, 1961, making her 50 years old at the AOD
of her disability. (AR 342). She has one year of college and
past relevant work as a caterer helper and a waiter. (AR
November 5, 2014 Plaintiff had a crisis assessment at
Pasadera Behavioral Health. (AR 1124). Plaintiff reported
depression, anxiety, isolating, overeating, fear of leaving
the house, stomach problems and frequent urination due to
anxiety, and nightmares.
stated that two weeks prior a child she babysat drowned and
now she has a panic attack every time she sees the pool.
Plaintiff also reported a history of childhood molestation
and emotional abuse. Plaintiff was described as clearly
depressed, frequently tearful, and had difficulty with
receptivity to feedback. (AR 1126). She was also noted to be
restless and anxious and frequently excused herself to use
the restroom. Plaintiff was diagnosed with anxiety disorder
and depressive disorder with a GAF of 45 and was referred to
COPE Community Services. (AR 1127-28).
November 7, 2014 Plaintiff had a psychiatric evaluation at
COPE. Her affect was anxious, her mood was anxious and
depressed, and she was crying. (AR 1141). She was observed to
be very emotional and crying, dressed in pajamas, and had an
odor of urine. (AR 1312). Plaintiff described worsening
anxiety, depression, and panic over the last year, with
severe symptoms for the last 3-4 months. (AR 1141). She was
treated for depression and anxiety 10 years prior but
recently had a traumatic event that set her back when the
neighbor child she cared for drowned. (AR 1167, 1312). She
reported feeling hopeless and worthless, had low energy,
nightmares, and had anxiety about being out of the house, in
crowds, and waiting in line. (AR 1141). Plaintiff also
reported a history of abuse and rape. (AR 1141, 1161). The
diagnosis was major depressive disorder, generalized anxiety
disorder, and PTSD. (AR 1168). Plaintiff was prescribed
Citalopram and referred for therapy. (AR 1142).
progress notes document the following:
December 30, 2014 Plaintiff was anxious, depressed, shaking,
and crying. (AR 1139, 1317). She reported that nightmares
were a primary concern and she had them most nights; she was
afraid to go out after dark; she had odd experiences
attributed to possibly picking up a spirit after the
child's death; and she was forgetful and isolating. (AR
1139, 1317). Plaintiff's PTSD, depression, and anxiety
were documented as worsening, and her social phobia was
stable or improved. (AR 1140). She was prescribed Prazosin
for nightmares and Citalopram was increased. (AR 1148, 1186,
December 31, 2014 Plaintiff reported she was afraid of the
dark, that someone was watching her when she was sleeping,
she heard scratching noises in the wall, things were
appearing and disappearing, and she heard voices trying to
harm her. (AR 1319).
February 4, 2015 Plaintiff was seen for a therapy assessment.
(AR 1329). Plaintiff reported that she was in the hospital
for a week following a recent overdose and given diagnoses of
possible pancreatitis, seizure, and heart attack or stroke.
Plaintiff had an anxious and euthymic mood and was anxious to
February 10, 2015 Plaintiff reported experiencing anxiety and
depression 7/7 days per week. (AR 1331).
March 13, 2015 Plaintiff reported a lot of social anxiety
symptoms, avoiding social interaction, and was unable to
leave her home. (AR 1335, 1337). She was depressed and her
affect was restricted. (AR 1335, 1337). She had nightmares
and stated the boy's spirit was moving things in her
house and she heard scratching in the walls and got up
constantly at night to see if a cat was stuck behind the
dresser. (AR 1337).
April 28, 2015 Plaintiff reported having difficulty leaving
the house and feeling nervous about everything. (AR 1344).
5, 2015 Plaintiff stated there were ghosts in her apartment;
she was afraid to sleep in her bedroom because she heard
noises and felt something on the bed; she had nightmares and
difficulty sleeping through the night; anxiety about leaving
the house; and fearfulness of attending therapy groups. (AR
7, 2015 Plaintiff reported she continued to feel depressed
and anxious daily and wanted to feel better so she could
start leaving the house. (AR 1348).
22, 2015 Plaintiff was anxious and tearful, reported
increased anxiety and needing hours to prepare herself to
leave the house, and had nightmares and difficulty sleeping.
9, 2015 Plaintiff reported not feeling well due to lack of
sleep due to nightmares, anxiety about being out of the
house, and fatigue. (AR 1351). She was depressed and anxious
and reported scratching in her walls, difficulty sleeping due
to fear of spirits, leaving the TV and lights on all night,
and finding doors that she had locked were unlocked.
12, 2015 Plaintiff reported nightmares, hearing voices, and
was afraid to leave the house. (AR 1353). She was observed to
be disheveled and anxious with blunt affect. A prescription
for Olanzapine was added. (AR 1354).
7, 2015 Plaintiff stated she couldn't get out of bed due
to depression. (AR 1356).
21, 2015 Plaintiff was anxious and depressed and reported
feeling hopeless, sad, paranoia, and difficulty leaving the
house. (AR 1358).
September 1, 2015 Plaintiff felt things hadn't improved:
she slept sporadically, woke every hour, slept on the couch
because she was afraid to go in her room, had panic attacks
when going outside and isolated at home, and wasn't doing
any housework or anything she enjoyed. (AR 1362).
October 13, 2015 Plaintiff reported she tried to sleep in her
room for a few days but she was ...