
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.                                 ____________________                                     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) & (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                                         -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-
