     Case: 13-31065      Document: 00512732974         Page: 1    Date Filed: 08/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                               United States Court of Appeals
                                                        Fifth Circuit

                                                                                    FILED
                                                                                August 13, 2014
                                    No. 13-31065                                 Lyle W. Cayce
                                  Summary Calendar                                    Clerk


LAWRENCE HALLARON, III,

                                                 Plaintiff–Appellant,

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-2051


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Lawrence Hallaron, III, appeals the district court’s dismissal of his
complaint challenging an adverse decision of the Acting Commissioner of
Social Security (Commissioner). We reverse and remand.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                                   I
      In 1989, an Administrative Law Judge (ALJ) found Hallaron disabled
and entitled to supplemental security income under Title XVI of the Social
Security Act (the Act), 42 U.S.C. § 1381 et seq., effective 1987. 1                  The
Commissioner conducts periodic continuing disability reviews (CDRs) to
determine whether recipients remain entitled to benefits. 2 Absent certain
exceptions not relevant to this case, 42 U.S.C. § 1382c(a)(4)(A) provides that
the Commissioner may only cease providing benefits if substantial evidence
demonstrates both that there has “been any medical improvement in the
individual’s impairment” and that “the individual is now able to engage in
substantial       gainful    activity.” 3     Agency     regulations   define   “medical
improvement” as “any decrease in the medical severity of [the recipient’s]
impairment(s) which was present at the time of the most recent favorable
medical decision that [he or she was] disabled or continued to be disabled.” 4
Because the medical improvement determination requires examination of the
“most recent favorable medical decision,” agency regulations provide a
procedure in the event the file regarding that decision cannot be located. 20
C.F.R. § 416.994(b)(2)(iv)(E) provides:
      If the prior file cannot be located, we will first determine whether
      you are able to now engage in substantial gainful activity based on
      all your current impairments. . . . If you are able to engage in
      substantial gainful activity, we will determine whether an attempt
      should be made to reconstruct those portions of the missing file
      that were relevant to our most recent favorable medical decision
      (e.g., work history, medical evidence from treating sources and the
      results of consultative examinations). This determination will


      1   R. at 52, 687.
      2   See 20 C.F.R. § 416.990.
      3   42 U.S.C. § 1382c(a)(4)(A).
      4   20 C.F.R. § 416.994(b)(1)(i).
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                                        No. 13-31065
      consider the potential availability of old records in light of their
      age, whether the source of the evidence is still in operation, and
      whether reconstruction efforts will yield a complete record of the
      basis for the most recent favorable medical decision. If relevant
      parts of the prior record are not reconstructed either because it is
      determined not to attempt reconstruction or because such efforts
      fail, medical improvement cannot be found. 5

      In 1997, a continuing disability review of Hallaron resulted in a
determination that his disability continued (the 1997 CDR). 6                A second
continuing disability review in 2009, however, found that Hallaron’s disability
had ceased. 7 A state hearing officer upheld the cessation of benefits. 8 Hallaron
sought review of the decision before an ALJ. The ALJ found that “the file
containing the evidence utilized in the most recent favorable decision [i.e., the
1997 CDR] could not be located” and that “[c]urrent review of all
documentation in the available files does not yield a clear indication of the
evidence or conclusion on which the most recent favorable determination was
based.” 9 Rather than decide whether an attempt should be made to reconstruct
the file, however, the ALJ proceeded to examine whether “there is evidence of
current disability.” 10        Finding that Hallaron was not disabled, the ALJ
affirmed the cessation of benefits. 11




      5   Id. § 416.994(b)(2)(iv)(E).
      6   R. at 52, 687.
      7   R. at 52, 687.
      8   R. at 52, 687.
      9   R. at 53.
      10   R. at 53.
      11   R. at 64.
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                                          No. 13-31065
       Following the Appeals Council’s denial of review, Hallaron filed the
instant suit. 12         The district court denied Hallaron’s motion for summary
judgment and dismissed his complaint with prejudice. 13 The court concluded,
inter alia, that, while medical improvement cannot be found when the
Commissioner is unable to locate the recipient’s most recent favorable
determination, such a finding is not a condition precedent to the cessation of
benefits. 14 Rather, in such an instance, the Commissioner is permitted to
examine the recipient’s condition as though he is filing a new application. 15
This appeal followed.
                                                    II
       “Our review of the Commissioner’s decision is limited to two inquiries:
(1) whether the decision is supported by substantial evidence on the record as
a whole, and (2) whether the Commissioner applied the proper legal
standard.” 16 The Commissioner concedes that both the district court and the
ALJ erred in terminating Hallaron’s benefits. 17 We agree. As previously
noted, the Act specifically states that, absent exceptions not relevant here, 18 a
claimant’s benefits may be terminated only if substantial evidence
demonstrates both that “there has been any medical improvement” and that


       12   R. at 4-5, 687.
       13   R. at 738.
       14   R. at 732-34.
       15   R. at 732-34; see also R. at 707-709.
       16Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (citing Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994)); see also 42 U.S.C. § 405(g).
       17   Commissioner’s Br. 15.
       18 See 42 U.S.C. § 1382c(a)(4) (“Nothing in this paragraph shall be construed to require
a determination that an individual receiving benefits based on disability under this
subchapter is entitled to such benefits if the prior determination was fraudulently obtained
of if the individual is engaged in substantial gainful activity, cannot be located, or fails,
without good cause, to cooperate in a review of his or her entitlement . . . .”).
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                                          No. 13-31065
“the individual is now able to engage in substantial gainful activity.” 19 This
plain language unequivocally dictates that benefits may not be terminated
without a finding of medical improvement. As the district court recognized,
“20 C.F.R. § 416.994(b)(2)(iv)(E) precludes a finding of medical improvement
when the file upon which the claimant’s most recent favorable determination
of benefits was based cannot be found and is not reconstructed.” 20
       Although the ALJ found that “the file containing the evidence utilized in
the most recent favorable decision could not be located,” the ALJ proceeded to
analyze Hallaron’s entitlement to benefits based upon “whether there [was]
evidence of current disability.” 21 The ALJ did not consider whether there was
any medical improvement since the most recent favorable decision in 1997 or
whether an attempt should be made to reconstruct the file pertaining to the
1997 CDR. 22            Accordingly, the Commissioner’s decision was based on the
application of an improper legal standard, and the district court erred in
dismissing Hallaron’s complaint.
                                              III
       Although the parties agree that the district court and ALJ erred, they
differ on the proper relief. Hallaron asserts that we should reverse the district
court and order the Commissioner to reinstate Hallaron’s benefits because the
law clearly requires the continuation of benefits. 23                    By contrast, the
Commissioner asks that we instruct the district court to reverse the ALJ’s



       19   42 U.S.C. § 1382c(a)(4)(A).
       20R. at 732; 20 C.F.R. § 416.994(b)(2)(iv)(E) (“If relevant parts of the prior record are
not reconstructed either because it is determined not to attempt reconstruction or because
such efforts fail, medical improvement cannot be found.”).
       21   R. at 53.
       22   R. at 53.
       23   Hallaron Br. 31; Hallaron Reply Br. 4-8.
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                                          No. 13-31065
decision and remand for a rehearing pursuant to 42 U.S.C. § 405(g). 24 The
Commissioner argues that such relief is appropriate because the ALJ never
determined whether an attempt should be made to reconstruct or locate the
1997 CDR file, a procedure that, as discussed, 20 C.F.R. § 416.994(b)(2)(iv)(E)
requires. 25 On remand, the Commissioner argues, the ALJ will have the
opportunity to make such a determination. If the file can be reconstructed, the
ALJ will be able to make the comparison the regulations mandate; if not,
Hallaron’s benefits will be continued, and the new ALJ decision will serve as
the comparison-point decision for future CDRs. 26
       We agree that a remand to the Commissioner is appropriate. “If the
record before the agency does not support the agency action [or] if the agency
has not considered all relevant factors, . . . the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation.” 27 Hallaron does not dispute this general principle but argues
that it does not apply in this case because the ALJ “already weighed the
evidence, performed the evaluation that the law requires, and issued a
decision.” 28 We disagree. The ALJ did not make a determination of “whether
an attempt should be made to reconstruct those portions of the missing file
that were relevant to [the] most recent favorable medical decision.” 29 The ALJ
did not “consider the potential availability of old records in light of their age,


       24   Commissioner Br. 10.
       25   Commissioner Br. 10-12.
       26   Commissioner Br. 18-19.
       27 Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also I.N.S. v. Orlando
Ventura, 537 U.S. 12, 16 (2002) (per curiam) (“Generally speaking, a court of appeals should
remand a case to an agency for decision of a matter that statutes place primarily in agency
hands.”).
       28   Hallaron Reply Br. 5.
       29   20 C.F.R. § 416.994(b)(2)(iv)(E); see R. at 53.
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                                             No. 13-31065
whether the source of the evidence is still in operation, and whether
reconstruction efforts will yield a complete record of the basis for the most
recent favorable medical decision.” 30 The ALJ merely determined that the file
could not be located and that there was not a “clear indication” of the evidence
on which the most recent favorable determination was based. 31 As a result,
this is not a case in which the record clearly establishes that the claimant is
entitled to benefits or one in which his entitlement turns on a pure question of
law. 32 Rather, Hallaron’s entitlement to benefits depends on further factual
development and the application of a standard that the Commissioner is best
placed to apply.
                                         *        *         *
       For the foregoing reasons, the judgment of the district court is
REVERSED.               This case is REMANDED with instructions to vacate the
Commissioner’s decision and remand for proceedings consistent with this
opinion.




       30   20 C.F.R. 416.994(b)(2)(iv)(E); see R. at 53.
       31   R. at 53.
       32Cf. Siwe v. Holder, 742 F.3d 603, 612 (5th Cir. 2014) (declining to remand a purely
legal question to the agency after it had had two opportunities to address it); McQueen v.
Apfel, 168 F.3d 152, 156 (5th Cir. 1999) (declining to remand when “nothing in the record
would support a finding that” the claimant was not entitled to benefits).
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