          United States Court of Appeals
                      For the First Circuit


No. 17-2146

                       JAN C. TORRES-PAGÁN,

                      Plaintiff, Appellant,

                                v.

                       NANCY A. BERRYHILL,
     Acting Commissioner of Social Security Administration,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Mark G. Mastroianni, U.S. District Judge]


                              Before

                 Torruella, Thompson, and Barron,
                          Circuit Judges.


     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.



                         August 10, 2018
          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



     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.


                                 - 2 -
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


                              - 3 -
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).


                                   - 4 -
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.


                                        - 5 -
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


                                   - 6 -
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,



                                - 7 -
     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


                                - 8 -
                 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 five-
step 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.


                               - 9 -
     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 non-
     adversarial    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


                               - 10 -
      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.


                                  - 11 -
          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.


                              - 12 -
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.


                                         - 13 -
that       Torres-Pagán    was    prejudiced    by   having    his    psychiatric

treatment ignored by the ALJ.9

                                    D. The End

               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.




       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.


                                      - 14 -
