11-52-cv
 Parker-Grose v. Astrue

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 6th day
 of January, two thousand twelve.

 Present:
            JON O. NEWMAN,
            RALPH K. WINTER,
            ROBERT A. KATZMANN,
                                          Circuit Judges.

 ________________________________________________

 MARY JANE PARKER-GROSE,

            Plaintiff-Appellant,

                   v.                                            No. 11-52-cv

 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

          Defendant-Appellee.
 ________________________________________________

 For Plaintiff-Appellant:                 SARAH H. BOHR, Bohr & Harrington, LLC, Atlantic
                                          Beach, Fla. (Judith Brownlow, Brownlow Law PLLC,
                                          Brattleboro, Vt. on the brief)

 For Defendant-Appellee:                  SUSAN BELLER DONAHUE, Special Assistant United
                                          States Attorney (Carol L. Shea, Chief, Civil Division,
                                          on the brief), for Tristram J. Coffin, United States
                                          Attorney for the District of Vermont, Burlington Vt.
       Appeal from the United States District Court for the District of Vermont (Conroy, M.J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is VACATED and the case

REMANDED for further proceedings consistent with this order.

       Plaintiff-Appellant Mary Jane Parker-Grose appeals from a judgment of the United States

District Court for the District of Vermont (Conroy, M.J.) entered on November 16, 2010,

affirming the March 4, 2009 decision of the Commissioner of Social Security (“Commissioner”)

denying plaintiff’s application for Social Security Disability benefits. We assume the parties’

familiarity with the underlying facts and procedural history of this case.

       “In reviewing the denial of [Social Security] benefits by the [Commissioner], ‘our focus

is not so much on the district court’s ruling as it is on the administrative ruling.’” Rosa v.

Callahan, 

, 77 (2d Cir. 1999) (alterations in original) (quoting Schaal v. Apfel, 

, 500-01 (2d Cir. 1998)). “It is not our function to determine de novo whether [a

plaintiff] is disabled . . . .” Pratts v. Chater, 

, 37 (2d Cir. 1996). Instead, “[w]e set

aside” an Administrative Law Judge’s (“ALJ”) “decision only where it is based upon legal error

or is not supported by substantial evidence.” 

(alterations in original)

(quoting Balsamo v. Chater, 

, 79 (2d Cir. 1998)) (internal quotation marks omitted).

Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” 

(quoting Richardson v. Perales, 

, 401 (1971)) (internal quotation marks omitted).

Parker-Grose’s case must be remanded for further administrative proceedings, because the ALJ’s

finding that Parker-Grose’s “medically determinable mental impairment of depression . . . [is]


                                                  2
nonsevere,” Admin. R. 13, is not supported by substantial evidence and the Commissioner

failed to account for any functional limitations associated with Parker-Grose’s depression when

determining her residual functional capacity (“RFC”).

       To be “disabled” within the meaning of the Social Security Act, a claimant must have an

impairment or combination of impairments that are “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c).

An impairment is severe if it “significantly limits the claimant’s ability to do basic work

activities.” 20 C.F.R. § 404.1520(c).1 The “severity regulation,” however, “is valid only if

applied to screen out de minimis claims.” Dixon v. Shalala, 

, 1030 (2d Cir. 1995).

       The ALJ’s finding that Parker-Grose’s depression is nonsevere is not supported by

substantial evidence since the evidence on which it is based is inconsistent with evidence that

Parker-Grose’s depression significantly impaired her ability to do basic work activities. For

instance, the 2003 and 2006 reviews of Parker-Grose’s files by psychologist Joseph M. Patalano,

Ph.D both indicate that Parker-Grose was experiencing depression. Similarly, the 2006 Vermont

Disability Determination Services Assessment completed by psychologist Richard Root II, Ed.D

diagnosed Parker-Grose with a Global Assessment of Function (“GAF”) of 60. Two years later,

Dr. Root noted that Parker-Grose’s GAF had declined to fifty-five. Both of these GAF scores

are within the range assigned to patients who are experiencing “moderate symptoms” including

“moderate difficulty in school, work, [and] social functioning.” Admin. R. 455. Finally, the

ALJ’s reliance on Parker-Grose’s failure to “pursue[] mental health treatment as recommended”

is misplaced. In addition to seeing Cecil C. Beehler, M.D., who prescribed her various

antidepressant medications, Parker-Grose met with a therapist for at least some period of time.

       1
        “Basic work activities” is defined to “mean the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. § 404.1521(b).

                                                 3
       The Commissioner argues that even if it erred in adopting the ALJ’s finding that Parker-

Grose’s mental impairment was nonsevere, any error was harmless since the ALJ completed the

remaining three steps of the disability analysis. This argument, however, is unavailing. Having

found that any functional limitations associated with Parker-Grose’s mental impairment were

mild and only minimally affected her capacity to work, the ALJ did not take these restrictions

into account when determining her residual functional capacity. Accordingly, in this case, the

error made by the ALJ at step two was not harmless.

       Furthermore, even if this Court concluded that substantial evidence supports the ALJ’s

finding that Parker-Grose’s mental impairment was nonsevere, it would still be necessary to

remand this case for further consideration because the ALJ failed to account Parker-Grose’s

mental limitations when determining her RFC. A RFC determination must account for

limitations imposed by both severe and nonsevere impairments. See 20 C.F.R. § 404.1545(a)(2)

(“We will consider all of your medically determinable impairments of which we are aware,

including your medically determinable impairments that are not “severe[]” . . . when we assess

your [RFC] . . . .”); 20 C.F.R. § 416.945(a)(2) (same, but with respect to Supplemental Security

Income as opposed to Social Security Disability Insurance). In this case, after finding that

Parker-Grose’s “mental impairment of depression does not cause more than minimal limitation

in . . . [her] ability to perform basic mental work activities and is therefore nonsevere,” Admin.

R. 13, the ALJ determined Parker-Grose’s RFC without accounting for any of the limitations

arising from her mental impairment that were established by substantial evidence in the record.

Thus, the ALJ committed legal error.




                                                 4
       Because the ALJ’s finding that Parker-Grose’s mental impairment is nonsevere is not

supported by substantial evidence and the ALJ failed to account for any functional limitations

arising from Parker-Grose’s depression when determining her RFC, we REVERSE the

judgment of the district court and REMAND the case to the district court with instructions to

VACATE the March 4, 2009 decision of the Commissioner and REMAND the case for further

administrative proceedings consistent with this order.

                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




                                                5