Qafisheh v. Commissioner of Social Security Administration

          ORDER

          Eric J. MttKovich United Stales Magistrate Judge

         Plaintiff 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).

         Before 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.

         I. Procedural History

         Plaintiff 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 12).^[1]

         Plaintiff's 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.

         II. Factual History ^[2]

         Plaintiff 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 473).

         A. Treating Physicians

         On 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.

         Plaintiff 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).

         On 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).

         COPE progress notes document the following:

         On 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, 1316).

         On 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).

         On 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 receive help.

         On February 10, 2015 Plaintiff reported experiencing anxiety and depression 7/7 days per week. (AR 1331).

         On 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).

         On April 28, 2015 Plaintiff reported having difficulty leaving the house and feeling nervous about everything. (AR 1344).

         On May 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 1345).

         On May 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).

         On May 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. (AR 1350).

         On June 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.

         On June 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).

         On July 7, 2015 Plaintiff stated she couldn't get out of bed due to depression. (AR 1356).

         On July 21, 2015 Plaintiff was anxious and depressed and reported feeling hopeless, sad, paranoia, and difficulty leaving the house. (AR 1358).

         On 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).

         On October 13, 2015 Plaintiff reported she tried to sleep in her room for a few days but she was ...