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NUNEZ v. BARNHART

May 30, 2003

NOLIA NUNEZ, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Laura Taylor Swain, District Judge.

MEMORANDUM ORDER

Nolia Nunez ("Plaintiff") brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (the "Act"), challenging the final determination of the Commissioner of Social Security (the "Commissioner") that Plaintiff's disability ended in February 1988 and seeking an order restoring Plaintiff's benefits. The Commissioner has moved to remand this action for further administrative proceedings.

For the following reasons, the Commissioner's motion is denied, Plaintiff's motion for judgment on the pleadings is granted and the Commissioner's decision terminating Plaintiff's disability benefits is reversed.

BACKGROUND

Plaintiff filed an application for social security benefits based on a disability claim on March 2, 1993. (Tr. 39-51.) The administrative record of Plaintiff's application was lost after Plaintiff was granted disability benefits. Thereafter, in 1997, the Commissioner commenced an nunez.wpd 05/30/03 investigation of Plaintiff's continuing eligibility for benefits. The Commissioner interviewed Plaintiff and obtained Plaintiff's medical records from the hospital where Plaintiff had been treated for thyroid cancer from 1992 through 1994. (Tr. 117-47.) Plaintiff was also given a physical examination in November 1997 by a doctor hired by the Commissioner, and a psychiatric examination in July 1998. (Tr. 148-53, 163-64.)

Medical records from the hospital where Plaintiff was treated for thyroid cancer reflect that Plaintiff underwent surgery for thyroid cancer in November 1992. A pathology report confirmed that Plaintiff's thyroid was cancerous. (Tr. 134.) Plaintiff was treated with radiation therapy in February of 1993. There are gaps in Plaintiff's subsequent medical history. It appears that Plaintiff had been treated with a synthetic hormone as a thyroid replacement therapy and that Plaintiff subsequently had symptoms of hypothyroidism.

In March 1995, Plaintiff was examined to determine whether her cancer had spread. No sign of cancer was found. (Tr. 124.) Plaintiff continued to complain of joint pain, nausea, and shortness of breath.

In 1997, Plaintiff was examined by Dr. Grossman, a consulting doctor for the Commissioner. Dr. Grossman performed a physical examination of Plaintiff and determined that, while Plaintiff complained of joint pain, her condition was normal. (Tr. 150.) Subsequently, Dr. Canchela, a pyschiatrist, examined Plaintiff and determined that Plaintiff was depressed. Dr. Canchela further concluded that Plaintiff's allegations of disability were consistent with her examination. (Tr. 164.)

The Commissioner notified Plaintiff on February 18, 1998 that, because her medical condition had improved, she was able to work. (Tr. 54-57.) Plaintiff requested a hearing before an administrative law judge ("ALJ") which was held in December 1998. Plaintiff's testimony from the December 1998 hearing before the ALJ included her description of symptoms including weakness and fatigue, arm and leg pain, depression and difficulty sleeping. (Tr. 32, 35.) Plaintiff testified that she could walk about 4 blocks, stand for about 20 minutes and sit for less than one hour. (Tr. 33-34.) She also testified that she had trouble sleeping. (Tr. 36.) The ALJ issued a decision on December 22, 1998, finding that Plaintiff was not disabled. (Tr. 14-22.)

Plaintiff filed a request for Appeals Council review on February 22, 1999. The Appeals Council declined to review Plaintiff's claim, thus leaving the ALJ's December 22, 1998 decision as the final decision.

DISCUSSION

The Commissioner seeks an order remanding this case on the ground that the ALJ did not apply the appropriate standard in determining that Plaintiff's disability benefits should be terminated. Plaintiff argues that the disability benefits should instead be restored because the ALJ's failure to apply the correct standard requires the Commissioner to place Plaintiff in the position she would have been in had the error not been made. In addition, Plaintiff contends that no reasonable trier of fact could have terminated Plaintiff's benefits on the record before it.

The regulations of the Social Security Administration relating to determinations of whether disability benefits should continue (hereinafter, the "Regulations") provide that, "if [an individual] is entitled to disability benefits . . . continued entitlement to such benefits must be reviewed periodically." 20 C.F.R. § 416.994(a) (2003). Upon such review, the Commissioner "must determine if there has been any medical improvement in [a person's] impairment(s), and, if so, whether this medical improvement is related to [the person's] ability to work. Id. § 416.994(b). Medical improvement is defined in the regulations 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 id. § 416.994(b)(1)(i). In order to make a finding of medical improvement, the Commissioner must compare the prior and current medical evidence to determine whether there have been any changes in the signs, symptoms and laboratory findings associated with the claimant's impairment. Id. The Commissioner determines whether there has been medical improvement by comparing "the current medical severity of that impairment(s) which was present at the time of the most recent favorable decision that [the claimant] was disabled . . . to the medical severity of that impairment(s) at that time." Id. § 416.994(b)(1)(vii); see also Fleming v. Sullivan, 806 F. Supp. 13, 15 (E.D.N.Y. 1992) ("the relevant inquiry is whether the plaintiff's condition improved from the date of the most recent decision in his favor.")

Under the foregoing medical improvement standard, "the [Commissioner] may terminate benefits to a person previously adjudged to be disabled only upon substantial evidence that the individual's condition has improved to the point that he or she is no longer disabled, or that the initial finding of disability was erroneous." De Leon v. Secretary of Health and Human Services, 734 F.2d 930, 936 (2d Cir. 1984). Once a claimant has established that his or her ...


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