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Torres-Pagán v. Berryhill

United States Court of Appeals, First Circuit

August 10, 2018

JAN C. TORRES-PAGÁN, Plaintiff, Appellant,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant, Appellee.


          Iván A. Ramos, with whom RamosLaw was on brief, for appellant.

          Louis J. George, Special Assistant U.S. Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          THOMPSON, Circuit Judge.

         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 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 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 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" forms[4], 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), 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 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 ...

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