20-1283 Schafenberg v. Saul

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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of June, two thousand twenty-one.

PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

Susan Schafenberg,

Plaintiff-Appellant,

v. 20-1283

Andrew M. Saul, Commissioner of Social Security,

Defendant-Appellee. _____________________________________ For Appellant: PETER A. GORTON, Lachman & Gorton, Endicott, NY.

For Appellee: PETER WILLIAM JEWETT (Ellen E. Sovern, Regional Chief Counsel - Region II Office of the General Counsel, Social Security Administration, Of Counsel, on the brief), for Antoinette T. Bacon, Acting United States Attorney, Northern District of New York, New York, NY.

Appeal from the United States District Court for the Northern District of

New York (Therese Dancks, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is VACATED.

Plaintiff-Appellant Susan Schafenberg appeals from the final judgment of

the district court (Dancks, Mag. J.), affirming a decision from the Commissioner of

Social Security (“Commissioner”) that denied Schafenberg’s request for disability

benefits. We assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal.

In reviewing the decision of the Commissioner, “[w]e conduct a plenary

review of the administrative record to determine if there is substantial evidence . . .

2 to support the Commissioner’s decision.” Estrella v. Berryhill,

(2d

Cir. 2019) (internal quotation marks omitted). Though this standard “is not

high,” it requires “more than a mere scintilla” of evidence. Biestek v. Berryhill,

(2019) (internal quotation marks omitted).

To determine if a claimant suffers from a qualifying disability under the

Social Security Act, the Commissioner follows a five-step, sequential evaluation

process. See

(a)(4). The only step at issue here, the second

step, requires the Commissioner to “consider[] whether the claimant has a severe

impairment which significantly limits h[er] physical or mental ability to do basic

work activities.” Talavera v. Astrue,

(2d Cir. 2012) (internal

quotation marks omitted).

While a mental impairment rated as “none” or “mild” generally will not

qualify as “severe,” those rated as “moderate,” “marked,” or “extreme” will

qualify as “severe” under step two, thus requiring the administrative law judge

(“ALJ”) to proceed to the third step in the sequential process. See

.1520a(c)(4)–(d)(1). According to the policy statement clarifying the step-

two analysis, “[a] claim may be denied at step two only if the evidence shows that

the individual’s impairments . . . do not have more than a minimal effect on the

3 person’s physical or mental abilit[ies] to perform basic work activities.” Social

Security Ruling (“SSR”) 85-28,

, at *3 (1985). “If such a finding is

not clearly established by medical evidence, however, adjudication must continue

through the sequential evaluation process.”

(emphasis added). Indeed, “the

standard for a finding of severity under [s]tep [t]wo of the sequential analysis is de

minimis and is intended only to screen out the very weakest cases.” McIntyre v.

Colvin,

(2d Cir. 2014) (citing Dixon v. Shalala,

(2d Cir. 1995)).

Here, the record compels a finding that Schafenberg’s mental impairments

exceeded this “de minimis” threshold. Importantly, Dr. Amanda Slowik, who

performed a consultative psychiatric evaluation, and Dr. Sefali Bhutwala, who

reviewed Schafenberg’s medical records, opined that Schafenberg’s mental

impairments – stemming from her bipolar disorder, affective disorder, and/or

anxiety disorder – markedly or moderately limited Schafenberg’s ability to

concentrate and perform ordinary tasks required for basic work. No medical

opinion contradicted these findings. Moreover, in line with these opinions,

Schafenberg testified that, even when she is on medication, she experiences

symptoms of her mental illness (such as hallucinations, panic attacks, and racing

4 thoughts) as often as three times a month, and that the symptoms may last for two

days when she is stressed. Given these unrebutted facts and opinions, we simply

cannot conclude that the evidence “clearly establish[es]” only a “minimal effect on

[Schafenberg’s] mental abilit[ies] to perform basic work activities.” SSR 85-28,

, at *3; see also McIntyre,

.

None of the evidence discussed by the ALJ upsets our conclusion. To

begin, the record does not support the ALJ’s suggestion that Schafenberg’s

disability was less than severe merely because she cared for her sister and mother.

To the contrary, the record reflects that Schafenberg’s service to her family often

overwhelmed her, repeatedly causing her to have panic attacks. Cf. Nelson v.

Bowen,

(2d Cir. 1989) (“When a disabled person gamely chooses to

endure pain in order to pursue important goals, it would be a shame to hold this

endurance against him in determining benefits unless his conduct truly showed

that he is capable of working.”).

We are likewise unpersuaded by the treatment notes highlighted by the ALJ.

While those notes sometimes indicate that Schafenberg’s mental impairments

were under control, they nevertheless also document the significant impairments

caused by her illness. Schafenberg’s treatment notes thus reveal the cycle of

5 struggles and improvements that often accompany cases involving mental illness.

See Estrella,

. They do not, however, place Schafenberg’s

impairments in the category of the “very weakest cases,” which are screened out

at step two. McIntyre,

.

We have considered the Commissioner’s remaining arguments and find

them to be without merit. Accordingly, we VACATE the district court’s

judgment and REMAND with instructions that the district court, in turn, remand

this case to the Commissioner for further proceedings consistent with this opinion.

In doing so, we take no position as to whether Schafenberg has satisfied the

remaining steps in the sequential analysis, which must be determined in the first

instance by the ALJ.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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