USCA1 Opinion
J u n e 6 , 1 9 9 6
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2300
GEORGE RICE, JR.,
Plaintiff, Appellant,
v.
SHIRLEY S. CHATER,
Commissioner of Social Security,
Defendant, Appellee.
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ERRATA SHEET
The opinion of this Court issued on May 29, 1996 is
amended as follows:
On the cover sheet, the district court judge should be
changed from [Hon. Francis J. Boyle, Senior U.S. District Judge]
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to [Hon. Robert W. Lovegreen, U.S. Magistrate Judge].
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2300
GEORGE RICE, JR.,
Plaintiff, Appellant,
v.
SHIRLEY S. CHATER,
Commissioner of Social Security,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Robert W. Lovegreen, U.S. Magistrate Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Gretchen Bath on brief for appellant.
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Sheldon Whitehouse, United States Attorney, Anthony C. Digioia,
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Assistant U.S. Attorney, and Gerald Luke, Attorney, Social Security
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Administration, on brief for appellee.
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May 29, 1996
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Per Curiam. Appellant George Rice appeals from the
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district court's decision affirming the termination of Rice's
disability benefits by the Commissioner of Social Security
("Commissioner"). We vacate the decision and remand.
1. Erroneous Legal Standard Applied
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Rice was determined to be disabled as of January
1976 because he was found to have a urinary-kidney impairment
which met or equalled then Listing 6.04. Under that listing,
claimants with a permanent urinary diversion and progressive
bilateral hydronephrosis were considered disabled.1 The
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administrative law judge ("ALJ") determined that Rice's
impairment had medically improved by October 1990, justifying
termination of his disability benefits.
Under the regulations, medical improvement is
defined as "any decrease in the medical severity" of an
impairment, and any such decrease "must be based on changes
in the symptoms, signs and/or laboratory findings" associated
with the claimant's impairment. See 20 C.F.R.
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404.1594(b)(1). To find medical improvement, the
Commissioner must compare the prior and current medical
evidence to determine whether there have been any such
changes in the signs, symptoms and laboratory findings
associated with the claimant's impairment. Id. (b)(7),
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1As the Commissioner argues, there is substantial evidence
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to support the determination below that the applicable
listing was Listing 6.04.
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(c)(1). The ALJ did not make this comparison in finding
medical improvement in Rice's impairment, but focused instead
on the question whether Rice continued to meet Listing 6.04
in 1990. In doing so, he erred.2
2
2. Lack of Medical Improvement
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Rice argues that the symptoms, signs and laboratory
findings associated with his impairment did not change from
1976, when he was found disabled, to 1990, when his benefits
were terminated, precluding termination of his benefits on
the basis of medical improvement. We agree.
The laboratory findings evidencing Rice's renal
functioning in 1990 and thereafter were comparable to the
pre-1976 laboratory findings. Creatinine in 1990 was 2.6,
comparable to the 1969 creatinine of 2.84 and within the
other pre-1976 creatinine values of 1.0 and 3.8.3
3
Creatinine after 1990 continued to come within the pre-1976
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2The regulations clearly require the Commissioner to
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compare a claimant's current and prior symptoms, signs and
laboratory findings in determining medical improvement. Only
if those indicia of the severity of an impairment have
changed, i.e., improved, may benefits be terminated on the
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basis of medical improvement. The question whether a prior
listing continues to be met plays at best a subordinate role
in determining medical improvement and is not determinative.
Once medical improvement has been shown, a claimant's failure
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to meet a prior listing suffices to show that medical
improvement is related to ability to work, a separate issue
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which is not even considered until medical improvement has
been established, as provided in the regulations. See 20
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C.F.R. 404.1594(b)(1), (c)(1), (c)(3)(i), (f)(3) & (4).
3The record indicates that creatinine levels greater than
3
1.5 mg./dec. are considered abnormal.
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figures, ranging from 2.6 to 3.3. In 1990, blood urea
nitrogen was 18, a value which was within the pre-1976 range
of 12 to 47.4 After 1990, blood urea nitrogen also remained
4
within the range of pre-1976 values, fluctuating between 29
and 45. Rice's precise renal status was unknown as of 1990.
But, in 1992, he was diagnosed with renal failure as he had
been in 1973; he was also found to have advanced
hydronephrosis and a markedly hydronephrotic kidney, similar
to the 1968 and 1969 characterizations of his hydronephrosis
as marked or severe. When questioned as to what the clinical
findings showed about Rice's impairment, the medical expert
answered that he found no evidence of change in Rice's
condition from January 1976 to the fall of 1990. On the
basis of the above, it seems evident that there was no
medical improvement in Rice's condition from 1976 to 1990, as
that term is defined in the regulations. See 20 C.F.R.
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404.1594(b)(1) & (7).
Under the circumstances present in this case,
Rice's failure to seek treatment from 1973 to 1990 is not
evidence of medical improvement. As noted, changed symptoms,
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signs and laboratory findings are the only relevant indicia
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of medical improvement under the regulations. Id.
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404.1594(b)(1) & (7), (f)(3). While the medical expert may
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41976 Listing 6.02A indicates that blood urea nitrogen of
4
30 mg./100 ml. or greater would be considered abnormal.
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have speculated that a failure to seek treatment for a
deteriorating impairment could denote medical improvement, on
the basis of the actual clinical findings in the record, he
stated only that Rice's condition had remained the same
(i.e., not changed) from 1976 to 1990. Moreover, Rice sought
no treatment for his impairment for the two-and-one-half year
period preceding the January 1976 finding of disability, a
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factor never taken into account by the ALJ and ignored by the
Commissioner on appeal. Given Rice's failure to seek
treatment for a substantial period of time preceding the
determination that he was disabled, his continuing failure to
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seek treatment is not evidence of change or improvement in
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his impairment. See 20 C.F.R. 404.1594(b)(7) (in
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determining medical improvement, the claimant's current
condition is compared with his condition as of the date of
the original disability decision); Bosley v. Shalala, 879 F.
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Supp. 296, 304 (W.D.N.Y. 1995) (improvements in a claimant's
condition which precede the date on which disability is found
cannot be used as evidence that the disability has ceased
since the regulations require comparison of the claimant's
current condition with his condition as of the date
disability was found); accord Fleming v. Sullivan, 806 F.
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Supp. 13, 15 (E.D.N.Y. 1992).
Furthermore, because Rice's creatinine levels from
1990 and from 1992-93 were commensurate with his pre-1976
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creatinine, i.e., had not changed, they cannot be cited as
evidence of medical improvement. The Commissioner argues
that the stability of creatinine levels shows medical
improvement because Rice's condition was deteriorating in
1976. We see two problems with her argument. First, she is
essentially arguing only that Rice's prognosis had improved
as of 1990 since his condition did not continue to worsen.
But the regulations require actual physical improvement in a
claimant's impairment, not merely an improved prognosis.
Second, her claim that Rice's condition was deteriorating in
1976, when he was found disabled, seems doubtful. As noted,
Rice sought no medical treatment from mid-1973 to January
1976. In addition, the medical expert testified that the
medical records indicated that Rice's condition had remained
stable from before 1976 to 1990. The medical expert further
stated that there was nothing in the record by which he could
judge whether Rice had progressive hydronephrosis in 1976.
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The last medical records suggesting that Rice's
hydronephrosis was increasing dated from 1969, seven years
before he was found disabled.5
5
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5Thus, the ALJ's approach in this case was not only
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legally erroneous, but it was flawed for other reasons as
well. Unless Rice actually had progressive hydronephrosis in
1976, it is not at all clear how the fact that he did not
have it in 1990 could evidence medical improvement. Yet the
ALJ never examined the evidence to determine whether Rice
actually had progressive hydronephrosis in 1976, but
apparently assumed that the 1976 determination that Rice met
Listing 6.04, which required progressive hydronephrosis, must
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3. Remand
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Given the lack of medical improvement in Rice's
impairment, the Commissioner could not terminate his benefits
without showing application of an exception under 20 C.F.R.
404.1594(d) or (e), see 42 U.S.C. 423(f); 20 C.F.R.
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404.1594(a), (f)(3), (5), a question which was not considered
below and has not been argued on appeal. On remand, the
Commissioner may wish to consider that question.
The decision of the district court is vacated. We
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remand to the district court with directions to remand the
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case to the Commissioner for further proceedings consistent
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with this opinion.
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be correct.
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