2012 DNH 198 - Figueroa v. SSA

Figueroa v . SSA                      11-CV-541-SM      12/10/12
                   UNITED STATES DISTRICT COURT

                     DISTRICT OF NEW HAMPSHIRE


Edgar David Figueroa,
     Claimant

     v.                                    Case N o . 11-cv-541-SM
                                           Opinion N o .

2012 DNH 198

Michael J. Astrue, Commissioner,
Social Security Administration,
     Defendant


                              O R D E R


     Claimant’s motion to reverse the Commissioner’s decision

denying his application for Supplemental Security Income Benefits

under Title XVI of the Social Security Act,

42 U.S.C. § 1381

 et

seq., document n o . 9, is granted.   The Commissioner’s motion to

affirm his decision, document n o . 1 1 , is denied.



     “It is well established in this circuit ‘that the Step 2

severity requirement is ... to be a de minimus policy, designed

to do no more than screen out groundless claims.’”     Mohammad v .

Astrue,

2011 WL 1706116

, at *7 (D.N.H. April 4 , 2011) (quoting

McDonald v . Secretary of Health & Human Services,

795 F.2d 1118, 1124

 (1st Cir.1986)).   Here, the ALJ plainly erred at Step 2 in

finding that Claimant’s “medically determinable . . . depression”

was not severe. Admin. Rec. at 1 6 . The provider reports

documenting the treatment claimant received for that disease are

sufficient to meet the low Step 2 threshold.
      The ALJ’s error, moreover, was not harmless. A Step 2 error

is harmless if the ALJ “continued through the remaining steps and

considered all of the claimant’s impairments.”    Syms v . Astrue,

2011 WL 4017870

, at *1 (D.N.H. Sept. 8 , 2011) (DiClerico, J . ) .

Nothing in the ALJ’s decision here suggests even inferentially,

that he considered Claimant’s depression at the RFC stage.

Compare Montore v . Astrue,

2012 WL 3583346

, at *3-4 (D.N.H. Aug.

2 0 , 2012) (a clear inference that ALJ “considered” bipolar

disorder at the RFC stage could be drawn from the fact that ALJ,

in his RFC assessment, credited reviewing psychologist’s opinion

regarding limitations flowing from all of claimant’s mental

impairments, including his bipolar disorder).



      Accordingly, the case is necessarily remanded for further

proceedings in accordance with this order. Because this remand

is made pursuant to sentence four of

42 U.S.C. § 405

(g), the

Clerk of the Court is instructed to enter judgment in accordance

with this order and close the case.



      SO ORDERED.



                               Steven J./McAuliffe
                               Jnited States District Judge

December 1 0 , 2012

cc:   Janine Gawryl, Esq.
      Robert J. Rabuck, Esq.

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