Rice v. Chater

• Court: Court of Appeals for the First Circuit
• Decided: May 29, 1996
• Docket: 95-2300
• Status: Published

Opinion

USCA1 Opinion

J       u       n       e   6       ,   1       9       9       6

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                   _______________


No.  95-2300


GEORGE RICE, JR.,

                                Plaintiff, Appellant,



                                          v.



                                  SHIRLEY S. CHATER,

                           Commissioner of Social Security,

                                 Defendant, Appellee.



                                _____________________


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]
                                                __________________________

          to  [Hon. Robert W. Lovegreen, U.S. Magistrate Judge].
                                         _____________________


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-2300



                                  GEORGE RICE, JR.,



                                Plaintiff, Appellant,



                                          v.



                                  SHIRLEY S. CHATER,

                           Commissioner of Social Security,



                                 Defendant, Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                  [Hon. Robert W. Lovegreen, U.S. Magistrate Judge]
                                             _____________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Cyr and Stahl, Circuit Judges.
                                           ______________



                                 ____________________



            Gretchen Bath on brief for appellant.
            _____________

            Sheldon  Whitehouse, United  States Attorney,  Anthony C. Digioia,
            ___________________                            __________________

        Assistant U.S.  Attorney, and  Gerald Luke, Attorney,  Social Security
                                       ___________

        Administration, on brief for appellee.


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                                     May 29, 1996

                                 ____________________



Per Curiam.  Appellant George Rice appeals from the
                      __________



            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
                          ________________________________



                      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
                                                                 1



            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.    
                                                     ___



            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),
                                                             ___



                                
            ____________________



               1As the Commissioner argues, there is substantial evidence
               1

            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
                          ___________________________



                      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



                                
            ____________________



               2The  regulations  clearly  require  the  Commissioner  to
               2

            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
            _______         ________

            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
                                     ___ ____ _____

            to  meet  a  prior  listing  suffices  to show  that  medical

            improvement is  related to ability to work,  a separate issue
                        __  _______ __ _______ __ ____

            which is  not even  considered until medical  improvement has

            been established,  as provided  in the  regulations.   See 20
                                                                   ___

            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.



                                         -4-



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.  
                                                         ___



            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,
                                                        _______ ________



            signs and  laboratory findings are the  only relevant indicia
            _____      __________ ________



            of  medical  improvement  under   the  regulations.    Id.   
                                                                   ___



            404.1594(b)(1) & (7),  (f)(3).  While the  medical expert may


____________________



               41976 Listing 6.02A indicates  that blood urea nitrogen of
               4

            30 mg./100 ml. or greater would be considered abnormal.



                                         -5-



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
                   _________



            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
                                                    __________



            seek treatment  is not evidence  of change or  improvement in
                                                ______     ___________



            his  impairment.     See  20  C.F.R.      404.1594(b)(7)  (in
                                 ___



            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.
                                                ______    _______



            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.
                                     ______ _______     ________



            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.
                                                                __  ____



            The   last    medical   records   suggesting    that   Rice's



            hydronephrosis was  increasing dated  from 1969, seven  years



            before he was found disabled.5
                                         5



                                
            ____________________



               5Thus,  the  ALJ's approach  in  this  case was  not  only
               5

            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



                                         -7-



3.  Remand
                          ______



                      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.  
                                  ___



            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
                      ___________________________________________________



            remand to the  district court with  directions to remand  the
            _____________________________________________________________



            case to the  Commissioner for further  proceedings consistent
            _____________________________________________________________



            with this opinion. 
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            be correct.



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