Date: 08-12-2018

Case Style:

Case Number: 17-2146

Judge: Thompson

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Ivan A. Ramos

Defendant's Attorney: Louis J. George

Description: In this Social Security
benefits opinion, Jan Torres-Pagán ("Torres-Pagán") appeals from
the District Court's order upholding an administrative law judge's
("ALJ") conclusion that, although he had previously been eligible
for Supplemental Security Income ("SSI") benefits as a child, he
was ineligible for the same as an adult. Because we believe the
record before the ALJ was not adequately developed enough to make
that call, we vacate and remand.
A. Getting Our Factual Bearings
We write here for the benefit of the parties involved.
And because they know the facts, our stage setting is more of a
sketch than it is a Monet.1 As of June 1, 2006, the Commissioner
determined that Torres-Pagán, then twelve years old, was entitled
to SSI benefits because he was found to meet the Social Security
Administration's ("SSA" or the "Agency") requirements for "Mental
Retardation."2 Individuals eligible for SSI benefits as a child
are required under 42 U.S.C. § 1382c(a)(3)(H)(iii) to have their
disability re-determined after reaching the age of eighteen. Under
1 For anyone longing for a more thorough discussion of how
things transpired before arriving at our doorstep, check out the
district court's opinion below. See Torres-Pagán v. Berryhill,
No. CV 16-30060-MGM, 2017 WL 4400748, at *1-3 (D. Mass. Sept. 29,
2017).
2 Listing 112.05 is no longer called the "Mental Retardation"
Listing. It has since been redefined as the "Intellectual
Disorder" Listing. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
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the re-determination process, the claimant is subjected to the
rules governing adults applying for SSI benefits. See 20 C.F.R.
§ 416.987. In 2013, soon after Torres-Pagán turned 18, the
Commissioner began a re-determination process to evaluate whether
his SSI benefits were still necessitated. Torres-Pagán alleged
that he was entitled to continued SSI benefits due to a learning
disorder, psychiatric issues, and hearing loss.
On May 14, 2013, Torres-Pagán underwent a consultative
examination by Dr. Robert Osofsky, an Otolaryngologist. Torres-
Pagán explained to the doctor that he had a ten-year history of
hearing loss stemming from a bilateral ear surgery. Dr. Osofsky
determined that Torres-Pagán's ears were normal, however, and that
"no significant ear or hearing pathology" existed at the time of
examination.
A month later, on June 26, 2013, Torres-Pagán had a
consultative psychological evaluation with Dr. Rafael Mora de
Jesús, Ph. D. At this examination, he reported the prior ear
surgery he had undergone as a child and explained that he could
not lift heavy objects due to pain in his head and jaw. He also
told Dr. de Jesús that his ability to work was inhibited by
constant nosebleeds and headaches that occurred whenever he was in
the sun. As for psychiatric problems, Torres-Pagán disclosed to
Dr. de Jesús that he had been treated at a mental health facility
from the age of twelve until about "one to two years ago" and that
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he had been prescribed medications to assist with attention and
sleep. At the time of the examination, however, Torres-Pagán
reported taking no medications. Dr. de Jesús also performed
cognitive testing on Torres-Pagán and determined that he had a
below-average IQ and that his reading skills were "average" and
math skills were in the "borderline range."3
And on July 2, 2013, Jon Perlman, Ed.D., a state agency
psychological consultant, determined that while Torres-Pagán was
moderately limited in his ability to understand, remember, and
carry out detailed instructions and also had mild issues in his
ability to maintain and concentrate for extended periods, he was
otherwise not significantly limited in his mental residual
functional capacity. Dr. Perlman concluded that Torres-Pagán
could remember simple instructions, complete routine tasks, make
simple work-related decisions, work in proximity with others
without being distracted by them, and interact appropriately with
the general public.
Equipped with these reports, the Commissioner found that
Torres-Pagán was no longer disabled and that his benefits should
stop. Torres-Pagán appealed by requesting reconsideration, but
3 Though neither party defines the term "borderline range" we
presume it refers to a below average cognitive ability. See T.P.
Alloway, Working Memory and Executive Function Profiles of
Individuals with Borderline Intellectual Functioning, 54 J. of
Intell. Disability Res. 448 (2010).
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the decision was upheld by a disability hearing officer after she
reviewed the records.
Torres-Pagán thereafter requested a hearing with an ALJ.
At some point prior to the ALJ hearing, however, Torres-Pagán began
psychiatric treatment at Valley Psychiatric Services ("Valley
Psychiatric" or "Valley") in Springfield, Massachusetts. He
submitted at least four separate forms to the SSA informing it
that he was receiving such services. Indeed, on two different
"Disability Report - Appeal" forms4, Torres-Pagán was asked by the
Agency to "tell [the SSA] who may have medical records or other
information about your illnesses, injuries, or conditions" and
each time Torres-Pagán provided the name, address, and phone number
of Valley Psychiatric. As for why he was visiting Valley, Torres-
Pagán wrote down "suicidal" on one form and "psychiatric iccues
[sic]" on the other. He also filled out a form entitled
"Claimant's Recent Medical Treatment" where he listed Candace
O'Brien, CNS, an employee of Valley Psychiatric, as his treating
physician. He again listed Valley Psychiatric's address and phone
number on the form. Finally, Torres-Pagán submitted a form
entitled "Claimant's Medications" where he listed that as of June
19, 2014, he was taking several prescription psychiatric
medications including Latuda (40mg), Mirtazapine (30mg),
4 Within the Agency these are formally known as SSA-3441
Forms.
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Hydroxyzine (25mg), and Divalproex (500mg). Each of these
prescriptions was noted as being prescribed by Ms. O'Brien.
At the hearing, Torres-Pagán, his mother (Liliam Pagán),
and a vocational expert were present. Torres-Pagán was not
represented by counsel, however. Though the ALJ told Torres-Pagán
that proceeding without an attorney could be detrimental to his
benefits claim, Torres-Pagán nevertheless elected to proceed pro
se.
The ALJ explained to Torres-Pagán and Lilliam that he
planned to rely in some part upon Dr. de Jesús's consultative
psychiatric examination in reaching his ultimate decision of
whether continued SSI benefits were needed. It became clear,
however, that Lilliam had never seen the report. To ensure
everyone was on the same page, the ALJ took a recess to provide
Torres-Pagán and his mother extra time to review Dr. de Jesús's
conclusions before proceeding further with the hearing.
Once Torres-Pagán and Lilliam had gone over the report,
the hearing reconvened. The ALJ asked Torres-Pagán whether the
report was accurate and he confirmed it was. The ALJ then asked
why Torres-Pagán believed SSI benefits were needed. Torres-Pagán
replied that he was prone to headaches and migraines when working
in the sun and that he experienced pain when lifting heavy objects.
In light of Torres-Pagán's stated limitations, the ALJ asked the
vocational expert whether there existed jobs that would (1) require
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Torres-Pagán to lift no more than twenty pounds, (2) not expose
him to the sun, and (3) would not require him to remember detailed
or complex instructions. The vocational expert answered that there
was, noting that employment as a janitor, laundry sorter, or
cashier would all meet those requirements and that at least one
hundred such jobs existed in Massachusetts and at least one
thousand existed nationally.
Torres-Pagán was asked whether there was any reason he
could not perform those types of jobs and he responded in the
negative. The ALJ also followed up with Lilliam, asking whether
in light of her son's testimony, she believed he could perform the
sorts of jobs identified by the vocational expert. She responded,
"[i]f he says that he's able to do that, I will not say against -
- I could not go against his words."
Before the hearing ended the ALJ made one last inquiry,
asking whether there was anything else Torres-Pagán wanted to let
him know before he left to make his decision about the benefits at
issue. The following exchange then took place:
Torres-Pagán: Well, because my, like, lexis [phonetic]
[sic], I was not even on pills. I was not drinking
pills, because I got -- [INAUDIBLE], a lot of anxiety.
ALJ: Mm-hmm, you have a kid too, don't you?
Torres-Pagán: I have a kid though, too. I cannot sleep
at night; I be staying up, like, to 2:00, 3:00 in the
morning, 4:00 in the morning without no sleep, then in
-- I can't still sleep, then I can sleep a little bit,
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then I wake up, like, one hour or two hours then; they
give me pills for that.
ALJ: Mm-hmm
Torres-Pagán: They giving me pills for anxiety, they
give me a pill for bipolarity.
ALJ: Mm-hmm
Torres-Pagán: And all that is helping me now because --
ALJ: Good.
Torres-Pagán: Back then I didn't used to it.5
The ALJ acknowledged Torres-Pagán's statement, stating:
"Well, I'm glad that you find relief from the medicines you're
taking." Torres-Pagán said nothing more on the topic. A little
under two weeks later, the ALJ released its decision, finding that
Torres-Pagán was not disabled under the Social Security Act.6
5 We know that this back-and-forth is a bit confusing, but it
is relevant to our upcoming analysis, so bear with us.
6 In arriving at this conclusion, the ALJ should have used a
five-step sequential process to evaluate Torres-Pagán's disability
claim. See 20 C.F.R. § 416.987(b). This sequence--which is the
same one used for adult claimants who file new applications--
proceeds as follows:
1) if the applicant is engaged in substantial gainful
work activity, the application is denied; 2) if the
applicant does not have, or has not had within the
relevant time period, a severe impairment or combination
of impairments, the application is denied; 3) if the
impairment meets the conditions for one of the "listed"
impairments in the Social Security regulations, then the
application is granted; 4) if the applicant's "residual
functional capacity" is such that he or she can still
perform past relevant work, then the application is
denied; 5) if the applicant, given his or her residual
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B. The District Court's Decision
At the District Court, Torres-Pagán provided numerous
reasons for reversing the decision of the ALJ. As relevant to us
(and citing our precedent in Heggarty v. Sullivan, 947 F.2d 990
(1st Cir. 1991)), Torres-Pagán argued that because Social Security
proceedings are not adversarial in nature, the ALJ "had a duty to
develop an adequate record from which a reasonable conclusion
[could] be drawn." Heggarty, 947 F.2d at 997 (citing Carrillo
Marin v. Sec'y of Health & Human Servs., 758 F.2d 14, 17 (1st Cir.
1985)). By failing to obtain the psychiatric medical records from
Valley, Torres-Pagán maintained that the ALJ had failed to fulfill
this basic requirement. The lower court, however, disagreed. It
explained that the record was adequately developed
functional capacity, education, work experience, and
age, is unable to do any other work, the application is
granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). Here, however,
the ALJ incorrectly utilized a different, seven-step evaluation
process that is used to determine whether there has been an
improvement in an individual's impairment(s) related to the
ability to do work. The Commissioner concedes the ALJ was wrong
to implement this "medical improvement" standard, but maintains
that the seven-step process is actually more lenient than the fivestep
evaluation that should have been used. We need not address
whether one standard is more lenient than the other, however. For
one thing, Torres-Pagán has not made any challenge to the ALJ's
inadvertent mix-up, so any such argument is not currently before
us. Moreover, the ALJ's analysis (for all intents and purposes)
applied the substance of the five-step analysis such that any error
was necessarily harmless. We do expect, however, that on remand
the ALJ will utilize the correct five-step standard.
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despite Plaintiff's pro se status and despite evidence
of some mental impairment. The ALJ fairly relied on
Plaintiff's testimony that he could perform work within
certain limitations, testimony corroborated by Dr. Mora
de Jesús's consultative report, Plaintiff's
acknowledgment that report was accurate and, to some
extent, [Lilliam] Pagán's testimony. In short,
Plaintiff's contention that consideration of his
psychiatric records would have strongly supported a
finding of disability remains speculative and overlooks
all contradictory evidence from which the ALJ inferred
that Plaintiff was able to perform limited work.
Torres-Pagán v. Berryhill, No. CV 16-30060-MGM, 2017 WL 4400748,
at *5 (D. Mass. Sept. 29, 2017) (internal quotations omitted).
For this reason (along with a few others we need not address), it
affirmed the ALJ's decision.
C. Our Take
On appeal, Torres-Pagán continues to argue that the
record before the ALJ was simply insufficient to conclude he was
no longer disabled, particularly in light of the fact that the ALJ
was on notice through both SSA filings and hearing testimony that
Torres-Pagán was being treated for psychiatric issues. Unlike our
colleague at the District Court, however, our de novo review leads
us to believe this argument has some wind in its sails.
More than three decades ago we explained,
In most instances, where appellant himself fails to
establish a sufficient claim of disability, the
[Commissioner] need proceed no further. Due to the nonadversarial
nature of disability determination
proceedings, however, the [Commissioner] has recognized
that she has certain responsibilities with regard to the
development of the evidence and we believe this
responsibility increases in cases where the appellant is
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unrepresented, where the claim itself seems on its face
to be substantial, where there are gaps in the evidence
necessary to a reasoned evaluation of the claim, and
where it is within the power of the administrative law
judge, without undue effort, to see that the gaps are
somewhat filled as by ordering easily obtained further
or more complete reports or requesting further
assistance from a social worker or psychiatrist or key
witness.
Currier v. Sec'y of Health, Ed. & Welfare, 612 F.2d 594, 598 (1st
Cir. 1980). And the case of Torres-Pagán, we think, is one that
falls squarely within the framework outlined in Currier.
First, we note that Torres-Pagán was unrepresented by
counsel. While it is true that "the absence of counsel, without
more, creates no basis for remand," Evangelista v. Sec'y of Health
& Human Servs., 826 F.2d 136, 142 (1st Cir. 1987), Torres-Pagán
was not merely a pro se claimant. Rather, Torres-Pagán was a
claimant with arguably severe special needs. Indeed, Torres-
Pagán's original grant of SSI benefits was premised on his meeting
the requirements of SSA's Listing for Mental Retardation.
Moreover, Torres-Pagán was identified by Dr. de Jesús as having an
IQ of only 84, one designated as a "Below-Average" classification
of non-verbal cognitive functioning. This IQ, Dr. de Jesús's
report explained, put Torres-Pagán in only the 14th percentile
nationwide. Pro se status, coupled with diagnosed mental
deficiencies, is without question the type of situation where we
believe an ALJ has a heightened responsibility to develop the
record.
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Not only that, but the ALJ here was more than aware that
Torres-Pagán was undergoing psychiatric treatment at Valley, and
yet he hardly inquired about the treatment. Torres-Pagán had
provided the Agency with his doctor's name, the medical facility
(Valley), his prescribed medications (with dosages), Valley's
address, Valley's phone number, and reasons for visiting Valley
(including supposed suicidal tendencies). He also attempted to
inform the ALJ of his psychiatric treatment at the end of the
hearing, but the ALJ seemed disinterested, answering "Mm-hmm" and
responding with no follow-up questions about Torres-Pagán's claims
of sleep disorder, anxiety, and bipolarity. This is especially
egregious given that the hearing transcript reveals Torres-Pagán
struggled to fully explain his alleged ailments and, despite this,
the ALJ in no way sought to ask anything that would clarify Torres-
Pagán's remarks. To us, the claim of psychiatric disability seemed
substantial on its face with gaps that should have been filled.
For reasons that are unclear, however, the claim appears to have
been more or less ignored.7
We have stated that "[u]nder 42 U.S.C. § 405(g), a remand
to the [Commissioner] is appropriate where 'the court determines
7 We recognize that Torres-Pagán did not deny that he could
do the jobs of cashier, cleaner, or laundry sorter when asked about
that work by the ALJ. But we hardly find that single statement by
Torres-Pagán to be sufficient to excuse the ALJ's failure to
adequately develop (or attempt to develop) the record.
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that further evidence is necessary to develop the facts of the
case fully, that such evidence is not cumulative, and that
consideration of it is essential to a fair hearing.'" Heggarty,
947 F.2d 990, 997 (1st Cir. 1991) (citing Evangelista, 826 F.2d at
139). And here, we believe those requirements have been met.
While the Commissioner argues that Torres-Pagán has failed to
demonstrate how he was prejudiced by Valley's records being left
out of the record (by, for example, providing a proffer of what
the Valley records would show), we conclude such an argument is a
failure.8 For one thing, the relevance of Torres-Pagán's mental
health treatment records to the ALJ's determination of whether
Torres-Pagán suffered from mental health impairments is plainly
evident. Moreover, individuals with psychiatric disorders are
often some of the most vulnerable in society and unlike the
standard pro se claimant at an SSA hearing, those with alleged
disabilities sounding in mental health may be particularly
vulnerable when unrepresented by counsel. We are thus satisfied
8 As a side note, at oral argument we specifically requested
the Commissioner file a 28(j) letter pointing us to any case law
supporting her position that a proffer is necessary to show
prejudice. She conceded in that letter that she could "identif[y]
no authority requiring proffer." (emphasis the Commissioner's).
We, too, have found nothing from any federal Circuit court in the
country imposing such a mandate. While there is certainly no harm
in providing a proffer, we decline to make it an explicit
requirement of showing prejudice in cases like these.
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that Torres-Pagán was prejudiced by having his psychiatric
treatment ignored by the ALJ.9

* * *

9 Torres-Pagán also argues that the ALJ erred by failing to
state which impairments he found severe at "Step 2" of the
sequential process to evaluate Torres-Pagán's disability claim.
In light of our remand due to the lack of a developed record, we
need not address this concern.

Outcome: While claimants for Social Security benefits should have
their cases thoroughly investigated by the SSA, it should surprise
no one that additional diligence is often warranted when the
claimant suffers from alleged mental disability. It is incumbent
upon the Commissioner to ensure that the records upon which
benefits decisions are made are fully developed and that
individuals with psychological problems are not given short
shrift. The judgment of the District Court is vacated and the
case is remanded with instructions to enter an order remanding to
the Commissioner for further proceedings not inconsistent with
this opinion. Costs are taxed in favor of Jan C. Torres-Págan.

Plaintiff's Experts:

Defendant's Experts:

Comments: