                 Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 10-1036

                          CECELIA FRUSHER,
              on behalf of Richard Frusher (deceased),

                         Plaintiff, Appellant,

                                      v.

                         MICHAEL J. ASTRUE,
                  Commissioner of Social Security,

                          Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                                   Before

                     Lipez, Howard and Thompson,
                           Circuit Judges.



     Donna M. Nesselbush and Marasco and Nesselbush, LLP on brief
for appellant.
     Dulce Donovan, Assistant U.S. Attorney, Peter F. Neronha,
United States Attorney and Robert J. Triba, Regional Chief Counsel,
Social Security Administration, on brief for appellee.



                            September 2, 2010
           Per Curiam.    Claimant Richard Frusher filed applications

for Social Security disability benefits in 1975 and 1978, both of

these applications were denied at the initial stage, and claimant

missed the deadlines for appealing either denial.             Claimant then

filed a successful application in November 2003, and he was found

to have been disabled, on the basis of a psychotic disorder, as of

April 1, 1975. Claimant subsequently died, and his widow, Cecilia,

was substituted as the party in interest.

           Ms. Frusher then requested that the time limits for

appealing the initial denials of the 1975 and 1978 applications be

extended on the ground of good cause -- i.e., claimant’s mental

impairment had prevented him from being able to file, or to

understand the need to file, timely requests for review.              See 20

C.F.R. § 404.909(b) and § 404.911(a)(4).           After a hearing, a

different administrative law judge (ALJ) denied an extension of

time, concluding that claimant had not made the requisite showing.

Because this conclusion is marred by unsupported factual findings,

we must vacate the district court’s grant of judgment in favor of

the Commissioner and remand for further proceedings.

                     I.   The Disability Decision

           We assume familiarity with the statutory and regulatory

framework, as well as with the standard of review, and we therefore

begin with a description of the first ALJ’s decision finding that

claimant   was   disabled.    The   ALJ’s   conclusion   in    this   regard


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essentially was based on the testimony of an impartial medical

expert,     psychiatrist     Dr.   John       Ruggiano.      However,      as     the

Commissioner has lost the hearing tape, we must rely on the ALJ’s

recounting of such testimony.         We also note that the ALJ described

Dr. Ruggiano’s opinions as “consistent with and supported by the

record as a whole,” Trans. at 38, and, since they are the only

specific    evidence      mentioned   in      the    discussion   of    claimant’s

impairments, we assume that the ALJ, at least implicitly, was

adopting these opinions as the factual underpinnings for his

disability determination.

            First,   Dr.    Ruggiano      addressed     claimant’s      functional

limitations and testified that claimant had marked restrictions in

his abilities (1) to engage in the activities of daily living, (2)

to function socially, and (3) to maintain concentration and persist

at tasks.    Id.    Dr. Ruggiano also described claimant as suffering

from   a     psychotic      disorder,      accompanied      by     delusions      or

hallucinations,      grossly    disorganized         behavior,    and     emotional

isolation and withdrawal. Id. Given this, Dr. Ruggiano explained,

claimant    could    be    considered     to    be    disabled    under    §    12.03

(Schizophrenic, Paranoid and Other Psychotic Disorders) of the

Listings of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

            Claimant appealed, and the Appeals Council first affirmed

the ALJ’s decision concerning claimant’s disability and the April

1, 1975 date on which he had become disabled.               Trans. at 41.        The


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Council then ordered a remand for a new hearing, id., and such

hearing was held before a different ALJ.

         II.     The Decision Denying an Extension of Time

          The new ALJ, as noted, rejected claimant’s arguments

regarding the existence of good cause for an extension of time to

appeal from either the September 4, 1975 denial of his first

disability benefits application or the July 11, 1978 denial of the

second such application. In support of this ruling, the second ALJ

cited the following:      (1) claimant never had been adjudicated

mentally incompetent; (2) claimant, during September 1975 and July

1978, had been left alone at home, without a caretaker; (3)

claimant, during this same time, had not been hospitalized and

there was nothing in the record evidence indicating that there had

been an exacerbation in his condition; (4) claimant had experienced

no problems in filing the two prior applications; (5) claimant had

worked, although not at the substantial gainful activity level,

during the time that he claimed to have been disabled; (6) claimant

had been allowed to be in charge of the mail and paying the bills;

and (7) claimant had not transferred power of attorney to his wife

until 1996, at which time he would have had to have been competent.

Id. at 21, 23.   The ALJ did not mention the first ALJ’s adoption of

Dr.   Ruggiano’s     opinions   regarding   claimant’s   functional

limitations.




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              The Appeals Council denied claimant’s request for review,

and     the   district    court   granted      judgment   in    favor      of   the

Commissioner.      This appeal ensued.

                              III.      Discussion

              For the following reasons, we find that the factors cited

by the second ALJ do not provide substantial support for the

conclusion     that   claimant    had    failed   to   show   that   his    mental

disorder had prevented him from timely appealing the denials of the

prior applications.        First, it appears from the initial decision

awarding disability benefits that claimant had not engaged in any

kind of work activity during the relevant time periods -- 1975 and

1978.     That is, and as the first ALJ specifically pointed out,

although claimant’s work record showed covered earnings in 1975 and

1976, such reflected accrued sick and vacation pay, “not work

activity after December 31, 1974.”            Trans. at 37 (emphasis added).

And, as for 1978, the record shows that claimant had no earnings

during that year.        Id. at 172.

              Second, the ALJ’s finding that claimant had been “in

charge” of the mail is not entirely accurate.             That is, claimant’s

widow testified at the second hearing that claimant’s control over

the mail essentially existed because she usually had been at work

at the time that the mail had been delivered.                 Id. at 269, 271.

And, while Ms. Frusher stated that she had permitted claimant to be

in control of paying the bills, such had occurred in the early


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1990s -- not the 1970s -- and, as the ALJ himself acknowledged, she

called this decision a “major mistake.”             Id. at 271-72.          Similarly

irrelevant     is   the    fact    that    claimant     had    been    sufficiently

competent to transfer power of attorney to his wife in 1996; that

is, claimant’s state of mind in 1975 and 1978 is the issue.

           Next, the ALJ’s finding that claimant had experienced no

difficulties in filing the two prior applications arguably is

accurate only in relation to the 1978 application.                   As for the 1975

application, Ms. Frusher specifically testified that, although she

could not remember exactly how claimant had filed it, she “kn[e]w

he didn’t do it alone.”           Id. at 270.     That is, she explained, she

was unsure whether “it was me or the company [claimant’s former

employer] that helped him apply for it.”                Id.    This testimony, we

think, clearly indicates that someone had assisted claimant in

submitting the 1975 application.            The ALJ nonetheless, and without

explanation, viewed Ms. Frusher (1) as admitting that she had not

helped   claimant    and    (2)     as    speculating      only     that   claimant’s

employer “may” have helped him.             Id. at 21 n.4, 23 n.8.          Since Ms.

Frusher never so testified, and since there is no other evidence on

the   issue,   the   conclusion          that   claimant      had   experienced   no

difficulties in filing the 1975 application simply has no support

in the record.

           We also think that the fact that claimant had been left

alone at home without someone watching over him says little about


                                          -6-
his mental capacity for understanding and following instructions

concerning      how    to    appeal   the     denial      of   a   social    security

application.       Rather, it seems likely that this factor is more

pertinent to such issues as whether claimant, without supervision,

could take care of his physical and other such needs or whether, if

left alone, he might, say, burn the house down.                    In any event, the

Commissioner does not explain this factor’s pertinence to the issue

at hand.

             This leaves, in addition to the inference that claimant

had filed the 1978 application on his own, the other two factors

cited   by   the      second   ALJ:     (1)    that       claimant    had    not    been

adjudicated     incompetent;      and   (2)     that      claimant    had    not    been

hospitalized in September 1975 or July 1978 and there was no

indication in the record that his condition had been exacerbated

during this time.           The primary problem with the first factor is

that    there    is    no    requirement      that    a    claimant    be    declared

incompetent, and the fact that claimant was not so declared simply

cannot support an inference that he therefore was sufficiently

competent to be able to follow the administrative appeals process.

             As for the second factor, the Commissioner points out

that,   although       claimant   had   been     hospitalized         in    1975,    his

discharge had occurred about six months prior to the September 4,

1975 denial notice.         Similarly, the Commissioner notes that, while

claimant had been hospitalized twice in 1978, his release had


                                        -7-
occurred    about    one    month   before       the    July    11,    1978    denial.

Moreover,   the     Commissioner     continues,        the     records      from   these

hospitalizations        indicate    that,       when    not     in    the    hospital,

claimant’s symptoms had not been exacerbated.

            The difficulty with the Commissioner’s position is that

he, as well as the second ALJ, ignore the impact of the first ALJ’s

factual findings -- i.e., that, as of April 1, 1975, claimant (1)

had experienced marked limitations in performing the activities of

daily living, in maintaining concentration, and in persisting at

tasks, and (2) had exhibited grossly disorganized behavior.                        These

findings are not limited to how claimant would function in a work

setting, and, as explained below, they implicate his ability to do

things for himself -- the touchstone, in this case, of the good

cause   analysis.          See   Social    Security         Ruling    91-5p,       Mental

Incapacity and Good Cause for Missing the Deadline to Request

Review, 1991 WL 208067, at *2.

            In   this    regard,    activities         of   daily     living   include

“adaptive activities such as cleaning, shopping, cooking, taking

public transportation, paying bills, maintaining a residence, . .

. using telephones and directories, and using a post office.”                         20

C.F.R. Part 404, Subpt. P, App. 1, § 12.00(C)(1).                      And, “marked”

restrictions in these kinds of activities will be found where “the

degree of limitation is such as to interfere seriously with [a

claimant’s]      ability    to   function       independently,        appropriately,


                                          -8-
effectively,      and     on     a    sustained     basis.”          Id.      §    12.00(C).

Similarly,     while      someone       with    a   “marked”       limitation         in    the

abilities to concentrate and persist at tasks might be able to

complete simple tasks, he or she often cannot do so without

supervision or assistance.              Id. § 12.00(C)(3).

           Given this, we think that the findings make by the first

ALJ establish that claimant’s mental condition seriously impaired

his   abilities     (1)    to        independently       take    care    of       basic    life

activities,     (2)       to     complete       tasks      without       assistance          or

supervision, and (3) to act in any kind of organized fashion.

Moreover, the first ALJ did not restrict claimant’s functional

limitations    to   any        specific    time     --    e.g.,    when    claimant         was

hospitalized or about to be hospitalized.                       Nor, since the tape of

the first hearing has been lost, is there any evidence that Dr.

Ruggiano so restricted his opinions.                     As a result, and resolving

all reasonable doubt in claimant’s favor as we must, see SSR 91-5p,

we assume that the first ALJ implicitly had found that claimant

generally had experienced such limitations, including when he was

outside of the hospital.

           In light of this, the fact that claimant had not been in

the hospital in September 1975 or July 1978 cannot support the

inference that his psychotic disorder thus did not prevent him from

being   able   to   process          timely    appeals     at    those     times.          Also

inadequate to support such inference is the Commissioner’s citation


                                              -9-
to   isolated     statements     in   the    25-page    treatment   record   of

claimant’s      in-patient     hospitalizations,       which   statements    say

nothing specific about claimant’s state of mind during the relevant

times.      Last, and assuming that claimant had filed the 1978

application on his own, we do not think that this fact, standing

alone, constitutes substantial evidence to support the conclusion

that claimant possessed the ability to appeal from the denial of

that application.     Compare Matos v. Secretary of Health, Education

and Welfare, 581 F.2d 282, 287 (1st Cir. 1978) (considering, where

there was very little in the way of evidence showing a mental

impairment in the first place, the fact that claimant had been able

to file a prior application); Shrader v. Heckler, 754 F.2d 142, 144

(4th Cir. 1985) (noting, in finding that the claimant’s mental

impairment had not prevented him from pursuing his administrative

remedies, the facts (1) that claimant had written to his lawyer

stating that he would appeal every denial of his disability claims

and (2) that claimant had, in fact, appealed one of the prior

denials).

            The sticking point is that, although the administrative

record before this court contains only the reports from claimant’s

in-patient hospitalizations (and they are the only medical data

listed in the record’s table of contents, Trans. at 6), the first

ALJ, in determining that claimant was disabled, stated that he also

had reviewed the treatment notes from the various psychiatrists who


                                      -10-
had seen claimant on an out-patient basis during the intervals

between hospitalizations.   See id. at 37.   Given this, and given

the flawed findings in the second ALJ’s decision, we are of the

view that such records, which might reveal information about

claimant’s functioning at the relevant times, should be reviewed.

As such, we conclude that a remand is required.

           The judgment of the district court therefore is vacated,

and the case is remanded to that court with instructions to remand

to the Commissioner for further proceedings in accordance with this

opinion.




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