

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.

                                         

                         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.

                             -3-

(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) &amp; (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) &amp; (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) &amp; (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

                             -6-

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.                               

                                                    

be correct.

                             -8-
