UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jacob A. Perry

v. Civil No. 13-cv-229-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Jacob Perry appeals the Social Security Administration’s

(“SSA”) denial of his application for supplemental security

income. An administrative law judge (“ALJ”) at the SSA ruled

that, despite severe impairments of autism, depression, and

anxiety, Perry retains the residual functional capacity (“RFC”)

to perform jobs that exist in significant numbers in the national

economy, and thus is not disabled. See

(a).

The Appeals Council later denied Perry’s request for review of

the ALJ’s decision, see

§ 416.1467, with the result that it

became the SSA’s final decision on Perry’s application, see id.

§ 416.1481. Perry appealed the decision to this court, which has

jurisdiction under

(g) (Social Security).

Perry (who was not represented by counsel before the ALJ,

but is now) has filed a motion to reverse the decision. See L.R.

9.1(b)(1). He contends that the ALJ (1) lacked substantial

evidence to support his conclusion as to Perry’s RFC; (2) erred

in his assessment of Perry’s credibility; and (3) did not fulfill his duty to develop the administrative record. The Commissioner

of the SSA has cross-moved for an order affirming the ALJ’s

decision. See L.R. 9.1(d). As explained below, the court agrees

with the Commissioner that the ALJ committed no reversible error,

and accordingly grants her motion to affirm (and denies Perry’s

motion to reverse) the ALJ’s decision.

While Perry’s division of the issues on appeal into the

three separate categories just identified may seem to invite a

structured analysis of those issues, his memorandum does not lend

itself to a structured approach. The memorandum simply relates

what Perry believes are weaknesses in the ALJ’s decision in a

stream-of-consciousness fashion, without weaving those threads of

alleged error into a cohesive argument. That alone complicates

the court’s review of the issues Perry raises on appeal, but the

court’s ability to address those issues is further hindered by

the memorandum’s heavy reliance on materials that were submitted

to the Appeals Council, but were not before the ALJ. “The ALJ’s

determination is reviewed based on the evidence of record at the

time of his decision, so this court cannot consider additional

evidence submitted only to the Appeals Council.” Costa v.

Astrue, No. 09-cv-441,

, at *1 (D.N.H. Nov. 3,

2010) (citing Mills v. Apfel,

(1st Cir. 2001)).

So, to the extent that Perry’s arguments on appeal rely on the

2 proposition that the ALJ’s decision is inconsistent with that

evidence, or that the ALJ would have had a different opinion as

to Perry’s disability if that evidence had been before him, that

alone cannot be grounds for remand.1

The absence of that evidence from the record before the ALJ

may nonetheless entitle Perry to relief if, as he argues, the ALJ

failed to fulfill his duty to develop the record. As this court

has previously noted, “[b]ecause Social Security proceedings are

not adversarial in nature, [an ALJ] has a duty to develop an

adequate record from which a reasonable conclusion can be drawn,”

a duty that is heightened where, as here, the claimant is not

represented by counsel. Gaudreault v. Astrue,

(quoting Heggarty v. Sullivan,

(1st Cir.

1991)). Perry identifies a number of items he believes the ALJ

should have obtained before rendering a decision–-including his

college transcripts, the reason for his dismissal from his job,

the “true nature” of his activities of daily living, and two

1 Perry has not argued that the Appeals Council erroneously denied his request for review of the ALJ’s decision, despite its receipt of the additional evidence. Cf. Mills,

(if Appeals Council “gives an egregiously mistaken ground” for refusal to review ALJ’s decision–-e.g., by rejecting new evidence as immaterial when the evidence is, in fact, material–-court may remand for further proceedings). The court therefore does not address that issue here.

3 medical reports–-all of which he later submitted to the Appeals

Council.

With a single exception, the ALJ had no obligation to obtain

any of these items of evidence prior to rendering his decision.

“The ALJ’s duty to develop the record is only triggered . . .

once [the ALJ is] alerted by the record to the presence of an

issue.” Gillis v. Astrue,

(quoting Santiago v.

Sec’y of HHS,

(1st Cir. 1991)) (emphasis and

internal quotation marks omitted). Perry himself identifies

nothing in the record that could have alerted the ALJ of the need

to obtain the omitted evidence. This court’s independent review

of the record reveals that, of the various pieces of evidence

Perry claims were essential, there is only one the ALJ should

have taken steps to obtain. Specifically, the record before the

ALJ contained just the first page of Dr. William Jamieson’s

report on his neuropsychological examination of Perry, and it is

apparent from that page that additional pages followed. Despite

this obvious omission from the record, the ALJ did not attempt to

obtain the remainder of Jamieson’s report; his failure to do so

was error. Cf. Gaudreault,

(ALJ erred in

failing to obtain obviously absent medical records).2

2 A brief word on the other records Perry says the ALJ should have obtained is warranted.

4 This was not, however, reversible error. Remand for the

ALJ’s failure to develop the record is only appropriate if the

plaintiff’s claim is prejudiced as a result. Id. at 14; cf. Ward

v. Comm’r of Soc. Sec.,

(1st Cir. 2000) (“While

an error of law by the ALJ may necessitate a remand, a remand is

not essential if it will amount to no more than an empty

exercise.”). As the Commissioner points out, the full version of

Jamieson’s report does not undermine the ALJ’s decision in any

First, Perry and his grandmother both testified at the administrative hearing before the ALJ, and covered such topics as Perry’s performance in college, the reason he was dismissed from his previous job, and his activities of daily living. Any duty the ALJ had to explore these issues was satisfied by his inquiry into them at the hearing. Cf. Ormond v. Colvin,

(ALJ satisfied duty to inquire as to claimant’s termination by asking about it at the hearing). While Perry now asserts that his testimony at the hearing was, in some respects, incorrect or misleading, he has cited, and the court has found, no authority for the proposition that the duty to develop the record obliges an ALJ to probe the truthfulness of a claimant’s testimony by obtaining records or oral accounts from third parties. (Nor has Perry attempted to reconcile his view that the ALJ should not have believed the testimony he gave about his previous job and activities of daily living with this view that the ALJ should have believed his testimony about the limiting effects of his impairments.) Second, as to the other medical record Perry says the ALJ should have obtained–-an opinion from his therapist, Dr. Sarah Hall–-there is simply nothing in the record that could have put the ALJ on notice that such an opinion was needed. The SSA had requested and obtained Hall’s notes, and was also in possession of a mental health evaluation report prepared by another doctor in Hall’s practice, Dr. Juliana Read. There was no reason for the ALJ to believe that a further opinion from Hall would add anything meaningful to the record.

5 way. Indeed, the report is entirely consistent with the ALJ’s

decision. The report, which diagnosed Perry with mild Asperger’s

disorder and mild depression–-the same impairments recognized by

the ALJ–-opined that these impairments caused Perry “difficulties

in applying his understanding [of societal norms and mores] to

practical everyday situations,” as well as discomfort in social

interactions. Jamieson recommended that Perry avoid “conditions

of increased stress,” which could be triggered by “increased

demands in terms of social interactions,” as stress could cause

Perry to experience depression and anxiety. The ALJ recognized

both Perry’s “moderate difficulties” in “social functioning” and

his “stress-related symptoms of anxiety and depression” in the

written decision, and tailored Perry’s RFC accordingly. Access

to the full version of Jamieson’s report, then, could not have

altered the ALJ’s analysis in any way.

Stripped of its reliance on the report and other materials

not presented to the ALJ, Perry’s memorandum essentially takes

issue with the way the ALJ reconciled the record evidence as to

his abilities and activities. Weighing and drawing conclusions

from the evidence, however, is the ALJ’s prerogative, see Seavey

v. Barnhart,

(1st Cir. 2001), and, although Perry

accuses the ALJ of “ignoring” certain evidence, the court sees no

indication of that. While the ALJ did not discuss every piece of

6 evidence submitted to him in his written decision, that is not

required. Lord v. Apfel,

(D.N.H. 2000).

Similarly, although Perry contends that the ALJ’s analysis of his

credibility failed to comply with Social Security Ruling (“SSR”)

96-7p, Titles II and XVI: Evaluation of Symptoms in Disability

Claims: Assessing the Credibility of an Individual’s Statements,

(S.S.A. 1996), as explained and applied by the

opinion in Guziewicz v. Astrue,

(McAuliffe, J.),

this court’s review of the ALJ’s written decision reveals that

the ALJ, in accord with both SSR 96-7p and Guziewicz, properly

determined that Perry’s allegations of disabling symptoms found

no support in either the objective medical evidence or the other

evidence of record. Though the ALJ did not explicitly address

the seven factors identified in SSR 96-7p as bearing on a

claimant’s credibility, that, again, is not strictly required, so

long as the written decision contains specific, clear reasons for

the ALJ’s credibility determination that are supported by record

evidence. Phelps v. Astrue,

. It does.

That leaves a final contention for the court to address.

Perry claims that his decision to proceed without counsel before

the ALJ was compromised because the ALJ, despite informing Perry

that he had the right to be represented by an attorney, “did not

explain the manner in which an attorney could aid [him] in the

7 proceedings” or raise “the possibility of a contingency fee

arrangement with an attorney and the required court approval of

the fees.” The court is not persuaded. While some courts of

appeals require ALJs to provide this type of information to pro

se claimants, see, e.g., Binion v. Shalala,

(7th

Cir. 1994), our own Court of Appeals has never done so. And, in

any event, the SSA sent Perry detailed information regarding his

right to representation on at least two occasions prior to the

hearing. See Admin. R. at 61-77. Those mailings informed Perry

of the ways in which an attorney could assist him and the types

of fee arrangements available, and also provided him with a list

of legal aid organizations and referral services that could help

him find counsel. Combined with the ALJ’s confirmation at the

hearing that Perry wished to proceed without counsel, this was

sufficient to fulfill any obligation the SSA had to inform Perry

of his right to an attorney. See Ratulowski v. Astrue,

(7th Cir. 2010); Johnson v. Comm’r of Soc. Sec.,

(6th Cir. 2004); Norden v. Barnhart,

(5th Cir. 2003).

8 Based on the foregoing, Perry’s motion to reverse the

Commissioner’s decision3 is DENIED, and the Commissioner’s motion

to affirm that decision4 is GRANTED. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: September 23, 2014

cc: Elizabeth R. Jones, Esq. T. David Plourde, Esq.

3 Document no. 9. 4 Document no. 12.

9