United States District Court, D. Arizona
J. Markovich, United States Magistrate Judge
Gilbert Mota 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 seven issues on appeal: 1) whether
substantial evidence supports the Commissioner's finding
that Plaintiff has substance abuse disorder; 2) the
Commissioner failed to consider the treating provider's
opinion; (3) the Commissioner failed to give controlling
weight to portions of the treating physician's opinion
and failed to provide specific and legitimate reasons to
assign the opinion little weight; 4) whether substantial
evidence supports the finding that Plaintiff's mental
impairments were non-severe at Step Two; 5) the Commissioner
failed to provide clear and convincing reasons to find
Plaintiff partially credible; 6) whether substantial evidence
supports the Commissioner's finding that three jobs were
appropriate and available for Plaintiff's residual
functional capacity (“RFC”); and 7) whether the
Commissioner failed to follow the Appeals Council's
remand order. (Doc. 18). Plaintiff requests that this matter
be remanded for an award of benefits. Defendant concedes that
the ALJ committed error but contends that the appropriate
remedy is a remand for further administrative proceedings.
the Court are Plaintiff's Opening Brief, Defendant's
Response, and Plaintiff's Reply. (Docs. 18, 22, &
25). 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. For the reasons stated below, the
Court finds that this matter should be reversed and remanded
for an award of benefits.
filed a Title XVI application for social security disability
benefits on March 8, 2012. (Administrative Record
(“AR”) 248). Plaintiff alleged disability
beginning on August 6, 2008 based on severe back injury and
antisocial personality disorder. (AR 97).Plaintiff's
application was denied upon initial review (AR 110) and on
reconsideration (AR 111). A hearing was held on March 12,
2014 (AR 70), after which ALJ Lauren Mathon found that
Plaintiff was not disabled because he could perform his PRW
as a bouncer and bartender. (AR 139-40). The ALJ also made an
alternate finding at Step Five that Plaintiff could perform
other work existing in the national economy. (AR 140-41).
Plaintiff appealed this decision, and on September 22, 2015
the Appeals Council issued an order remanding the case back
to an ALJ. (AR 147).
more hearings were held on March 28, 2016 (AR 61) and
September 21, 2016 (AR 39), after which ALJ Peter Baum found
that Plaintiff was not disabled because substance use was a
contributing factor material to the determination of
disability, and if Plaintiff stopped the substance use, he
would not be disabled and would be able to perform other work
existing in the national economy. (AR 28-30). On September
12, 2017 the Appeals Council denied Plaintiff's request
to review the ALJ's decision. (AR 1).
date last insured (“DLI”) for DIB purposes is
September 30, 2012. (AR 97). Thus, in order to be eligible
for benefits, Plaintiff must prove that he was disabled
during the time period of his amended AOD of February 18,
2010 and his DLI of September 30, 2012.
Factual History 
was born on July 27, 1971, making him 38 years old at the AOD
of his disability. (AR 97). He has a GED and past relevant
work as a doorman/bouncer and construction laborer. (AR 276).
has received mental health services at COPE since 2009.
initial assessment on August 6, 2009 Plaintiff reported
needing help with his anger, stress, depression, and
relationship problems. (AR 723). He reported using alcohol
and cocaine as an outlet to relieve stress but only uses them
when things aren't going well and denied having a
problem. (AR 724). Plaintiff was assessed at risk for
continued use or relapse but said he wanted to learn more
effective coping skills. (AR 726). Plaintiff reported recent
thoughts about harming himself and had friends who committed
suicide. (AR 727-28). Plaintiff also reported a history of
violence, getting into fights, being in a gang, and being
incarcerated for attempted murder. (AR 728). Plaintiff's
diagnosis was depression, alcohol abuse, and cocaine abuse,
with a GAF score of 62 (mild symptoms). (AR 731-32).
October 19, 2009 Plaintiff had a flat affect and reported
problems with controlling impulses to act on anger and verbal
hostility. (AR 642).
November 18, 2009 psychiatric evaluation Plaintiff reported
significant issues with anger management, easily agitated and
irritated, poor impulse control, mood swings, feels down and
depressed, worries a lot and is anxious, and history of
suicidal ideation. (AR 635). Plaintiff last used meth 2 years
ago and last used cocaine 9 months ago, and currently used
alcohol occasionally. On exam Plaintiff had an angry affect
and was easily frustrated and agitated; the impression was
antisocial personality traits and complicated legal history,
most likely mood disorder on bipolar spectrum.
December 28, 2009 Plaintiff reported a lot of problems with
anger at work and at home; he stopped taking Risperdal
because it made him too sedated and he didn't feel good.
(AR 628). The clinical impression was history of substance
abuse (urine screen positive for opiates but Plaintiff denied
use) and significant Axis II presentation (antisocial
personality disorder). It was recommended Plaintiff
discontinue Ambien and Risperdal and try Lithium for anger
January 8, 2010 Plaintiff had a flat affect and reported
conflict with a coworker. (AR 680).
February 18, 2010 Plaintiff was depressed and anxious with
flat affect and reported no current use of substances. (AR
March 9, 2010 Plaintiff reported he was doing well and his
medications were working. (AR 668).
April 14, 2010 Plaintiff was anxious and irritable with
restricted affect. (AR 664). He stopped Lithium because of
weight gain and felt slightly calmer when on it but not
enough to continue taking it. The clinician noted Plaintiff
had tried several mood stabilizers but they did not work for
him, and prescribed Cymbalta.
April 23, 2010 Plaintiff was depressed with flattened affect;
he tried Cymbalta but it made him more irritable. (AR 663).
5, 2010 Plaintiff reported he stopped taking Cymbalta because
it gave him headaches and he did not want to try anything
else until after his back surgery. (AR 661).
11, 2010 Plaintiff had a flat affect and was feeling more
depressed. (AR 657).
assessment on July 12, 2010 notes that Plaintiff's
diagnoses are mood disorder, alcohol abuse, and cocaine
abuse. (AR 743). Plaintiff wanted to utilize therapy instead
of medications and felt the ones he tried were not effective.
August 5, 2010 Plaintiff's mood was anxious with a
restricted affect. (AR 718). Plaintiff admitted to using
alcohol and some cocaine when available but denied recent
use. The impression was that Plaintiff's mood was
directly related to his pain and frustration with not working
and financial difficulties, and Trazadone was prescribed.
October 29, 2010 Plaintiff had a flat affect but his mood was
bright and he was happy his back surgery was approved. (AR
December 6, 2010 Plaintiff reported he stopped Trazadone
because it didn't work. (AR 693).
March 11, 2011 Plaintiff was less depressed since his back
surgery, denied recent cocaine use, gave up alcohol for Lent,
and did not want to take psychiatric medication. (AR 778).
assessment on July 21, 2011 notes that Plaintiff's
diagnoses were mood disorder, alcohol abuse (unspecified
drinking behavior), cocaine abuse (in remission), amphetamine
use (in remission), and antisocial personality disorder. (AR
760). Plaintiff denied any substance use issues and did not
present with any withdrawal or overdose symptoms. (AR 761).
Plaintiff tried Cymbalta again for his pain and depression,
but he felt more agitated and depressed; he did not like
taking meds and wanted to try to manage things on his own.
September 27, 2011 Plaintiff reported he was sober and
sleeping better; he had thoughts of suicide one month prior.
November 9, 2011 Plaintiff was experiencing more pain and
limitations, contributing to worsening depression and sleep.
(AR 750). He was taking Alprazolam for anxiety and Diazepam
and did not want additional medication.
March 9, 2012 Plaintiff had restricted affect and reported
Alprazolam was helpful for anxiety but he was not sleeping
well; Ambien was prescribed for sleep. (AR 951-52).
24, 2012 Plaintiff was depressed with restricted affect;
upset due to brother's death last week and feeling anger,
sadness, and thoughts of violence. (AR 938).
assessment on July 30, 2012 notes that Plaintiff was being
treated for antisocial personality disorder and major
depressive disorder, and that his alcohol, cocaine, and
methamphetamine dependence were in remission. (AR 929).
Plaintiff takes Zolpidem for insomnia but only sleeps 4-5
hours a night. He recently experienced deaths of his brother,
cousin, and friend, and was significantly affected and deeply
saddened. (AR 930).
October 18, 2012 Plaintiff reported he was not doing well,
problems with his wife, and hit a wall in anger. Plaintiff
was depressed and irritable with restricted affect; he did
not want to try medication for mood because he tried several
in the past that did not help. (AR 923).
November 28, 2012 Plaintiff reported his anger had improved
since coming to COPE in 2009 and Vistaril was helpful. (AR
918). Plaintiff also reported feeling restless, having
thoughts that he might die if he goes to sleep, increased