Cecelia Frusher, on behalf of Richard Frusher (deceased) v. MICHAEL J. ASTRUE, Commissioner of Social Security

Not for Publication in West's Federal Reporter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

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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

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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

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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,

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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

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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

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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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