USCA1 Opinion

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

judge should

be

amended as follows:

On
changed
to

the cover

sheet,

the district

court

from [Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

[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
___________________
Assistant U.S.

Attorney, and

States Attorney,

Anthony C. Digio
________________

Gerald Luke, Attorney,

___________

Administration, on brief for appellee.

____________________

May 29, 1996

____________________

Social Secur

Per Curiam.
__________

Appellant George Rice appeals from the

district court's decision affirming the termination of Rice's

disability benefits

("Commissioner").

1.

by the Commissioner

of Social

Security

We vacate the decision and remand.

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

bilateral

hydronephrosis were

administrative

law

judge

considered

("ALJ")

and progressive

disabled.1
1

determined

The

that

Rice's

impairment had medically improved by October 1990, justifying

termination of his disability benefits.

Under

defined

the

as "any

impairment,

regulations,

decrease

in the

and any such decrease

medical

improvement

is

medical

severity" of

an

"must be based on changes

in the symptoms, signs and/or laboratory findings" associated

with

the

claimant's

404.1594(b)(1).

Commissioner

must

To

impairment.

find

compare

See
___

medical

the prior

20

C.F.R.

improvement,

and

current

the

medical

evidence

changes

to

in

associated

determine

the

with

whether

signs,

the

there have

symptoms

claimant's

and

been

any

laboratory

impairment.

such

findings

Id.
___

(b)(7),

____________________

1As the Commissioner argues, there is substantial evidence

1
to

support

the

determination

listing was Listing 6.04.

-3-

below

that

the

applicable

(c)(1).

The

ALJ did

not make

this comparison

in finding

medical improvement in Rice's impairment, but focused instead

on the question

in 1990.

whether Rice continued to

meet Listing 6.04

In doing so, he erred.2

2

2.

Lack of Medical Improvement

___________________________

Rice argues that the symptoms, signs and laboratory

findings associated

1976,

were

with his impairment did

not change from

when he was found disabled, to 1990, when his benefits

terminated, precluding termination

the basis of medical improvement.

The

functioning

laboratory

in 1990

pre-1976 laboratory

benefits on

We agree.

findings

and thereafter

findings.

of his

evidencing Rice's

renal

were comparable

to the

Creatinine in 1990

was 2.6,

comparable

other

to the

pre-1976

1969 creatinine

creatinine

Creatinine after

of 2.84

values

of

1990 continued to come

and within

1.0

and

the

3.8.3
3

within the pre-1976

____________________

2The
2

regulations

compare a

clearly

require

the

claimant's current and prior

Commissioner

to

symptoms, signs and

laboratory findings in determining medical improvement.

Only

if

have

those

indicia of

changed, i.e.,
_______
basis

the

severity

improved, may
________

impairment

benefits be terminated

of medical improvement.

listing

of an

The

on the

question whether a prior

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

prior

improvement is
__
which is

suffices

to show

related to ability to work,

_______ __ _______ __ ____

not even

been established,
C.F.R.

listing

considered until medical

as provided

in the

that

medical

a separate issue
improvement has

regulations.

See 20
___

404.1594(b)(1), (c)(1), (c)(3)(i), (f)(3) & (4).

3The record indicates that creatinine levels greater

3

than

1.5 mg./dec. are considered abnormal.

-4-

figures,

ranging from

nitrogen

was 18, a value which was within the pre-1976 range

of 12 to 47.4
4

within the

After

2.6

to 3.3.

In 1990,

blood

urea

1990, blood urea nitrogen also remained

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

been

he

in

1973;

was

also

found

to

hydronephrosis and a markedly hydronephrotic

to the 1968 and

findings showed about

that

condition from

basis

of the

advanced

kidney, similar

1969 characterizations of his hydronephrosis

as marked or severe.

answered

have

he had

When questioned as to what the clinical

Rice's impairment, the

he found

no

January 1976

above,

evidence

to the

it seems

medical expert

of change

in

fall of 1990.

evident

that there

Rice's

On

the

was

no

medical improvement in Rice's condition from 1976 to 1990, as

that term

is defined

404.1594(b)(1) & (7).

in the regulations.

See 20
___

C.F.R.

Under

Rice's failure to

the

circumstances

seek treatment

evidence of medical improvement.

signs and
_____

of

medical

present

from 1973 to

404.1594(b)(1) & (7),

under

(f)(3).

this

case,

1990 is

not

As noted, changed symptoms,

_______ ________

laboratory findings are the

__________ ________

improvement

in

the

only relevant indicia

regulations.

While the

Id.
___

medical expert may

____________________

41976 Listing 6.02A indicates

4

that blood urea nitrogen of

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

-5-

have

speculated

that

a failure

to

seek

treatment for

deteriorating impairment could denote medical improvement, on

the basis of the

stated

only

actual clinical findings in the

that Rice's

condition

had

(i.e., not changed) from 1976 to 1990.

record, he

remained the

same

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

his

is not evidence

impairment.

determining

condition

See
___

medical

20

of change or
______

C.F.R.

improvement,

is compared with his

404.1594(b)(7)

the

claimant's

condition as of

the original disability decision);

Supp. 296, 304 (W.D.N.Y.

improvement in
___________

(in

current

the date of

Bosley v. Shalala, 879 F.

______
_______

1995) (improvements in a claimant's

condition which precede the date on which disability is found

cannot be used

since the

current

as evidence

that the

regulations require

condition

disability

with

was found);

his

disability has

comparison of

condition

accord Fleming

as

ceased

the claimant's

of

the

v. Sullivan,

date

806 F.

______ _______

________

Supp. 13, 15 (E.D.N.Y. 1992).

Furthermore, because Rice's creatinine

1990

and from

1992-93 were

commensurate with

levels from

his pre-1976

-6-

creatinine, i.e., had

not changed, they

cannot be cited

as

evidence of

that

the

improvement

1976.

medical

stability

of

because

creatinine

claimant's

impairment,

Second, her claim that

1976.

condition did not

In

medical

deteriorating in

First, she is

had improved

continue to worsen.

not

merely an

improved

prognosis.

Rice's condition was deteriorating in

when he was found disabled, seems doubtful.

sought no

argues

actual physical improvement in a

medical treatment

addition, the medical

medical records indicated that

stable

was

shows

only that Rice's prognosis

But the regulations require

Rice

levels

Rice's condition

of 1990 since his

1976,

The Commissioner

We see two problems with her argument.

essentially arguing

as

improvement.

from mid-1973

expert testified

As noted,

to January

that the

Rice's condition had remained

from before 1976 to 1990.

The medical expert further

stated that there was nothing in the record by which he could

judge whether

The

last

Rice had progressive

medical

hydronephrosis was

records

hydronephrosis in
__

suggesting

increasing dated

1976.
____

that

Rice's

from 1969, seven

years

before he was found disabled.5

5

____________________

5Thus,
5
legally
well.

ALJ

ALJ's approach

erroneous, but it

in

this

was flawed

case was
for other

not

only

reasons as

Unless Rice actually had progressive hydronephrosis in

1976, it
have

the

is not at

all clear how

the fact that

he did not

it in 1990 could evidence medical improvement.

never examined

actually

had

the evidence

progressive

apparently assumed that the

to determine

hydronephrosis

in

Yet the

whether Rice
1976,

but

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.

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