Mota v. Commissioner of Social Security Administration

          ORDER

          Eric J. Markovich, United States Magistrate Judge

         Plaintiff 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.

         Before 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.

         I. Procedural History

         Plaintiff 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).^[1]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).^[2]

         Two 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).

         Plaintiff's 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.

         II. Factual History ^[3]

         Plaintiff 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).

         A. Treating Physicians

         Plaintiff has received mental health services at COPE since 2009.

         At his 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).

         On October 19, 2009 Plaintiff had a flat affect and reported problems with controlling impulses to act on anger and verbal hostility. (AR 642).

         At a 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.

         On 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 issues.

         On January 8, 2010 Plaintiff had a flat affect and reported conflict with a coworker. (AR 680).

         On February 18, 2010 Plaintiff was depressed and anxious with flat affect and reported no current use of substances. (AR 670).

         On March 9, 2010 Plaintiff reported he was doing well and his medications were working. (AR 668).

         On 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.

         On April 23, 2010 Plaintiff was depressed with flattened affect; he tried Cymbalta but it made him more irritable. (AR 663).

         On May 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).

         On June 11, 2010 Plaintiff had a flat affect and was feeling more depressed. (AR 657).

         An 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. (AR 742).

         On 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.

         On October 29, 2010 Plaintiff had a flat affect but his mood was bright and he was happy his back surgery was approved. (AR 701).

         On December 6, 2010 Plaintiff reported he stopped Trazadone because it didn't work. (AR 693).

         On 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).

         An 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. (AR 765).

         On September 27, 2011 Plaintiff reported he was sober and sleeping better; he had thoughts of suicide one month prior. (AR 753).

         On 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.

         On 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).

         On July 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).

         An 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).

         On 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).

         On 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 ...