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United States District Court, Southern District of New York

May 30, 2003


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


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.


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.


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 condition is disabling, the claimant is entitled to a presumption that the condition remains disabling. Id. at 937.

Here, it is undisputed that the ALJ in the December 1998 hearing did not follow the procedure mandated by the Regulations for determining whether Plaintiff's disability benefits should be continued. "Rather than making a finding as to whether there had been medical improvement in plaintiff's condition, the ALJ . . . concluded that plaintiff did not have any `severe' impairments and was not under a disability at any time since February 1, 1998." (Commissioner's Mem. at 3.)

Because the ALJ did not apply the correct legal standards in evaluating the evidence concerning Plaintiff's condition, the Commissioner's decision to terminate Plaintiff's benefits must be reversed. See Irvin v. Heckler, 592 F. Supp. 531, 539 (S.D.N.Y. 1984) (finding that because the Commissioner did not make a determination that there was any improvement in claimant's condition, but conducted a de novo hearing as to whether plaintiff was disabled, the Commissioner failed to rebut the presumption of plaintiff's continuing disability and the decision to terminate benefits lacked the requisite support of substantial evidence).

The Commissioner argues that, because the record in this case is incomplete in that the Plaintiff's administrative file cannot be located, the case should be remanded to allow the Commissioner to develop the record and apply the correct legal standard. (Commissioner's Mem. in Opposition to Plaintiff's Motion for Judgment on the Pleadings at 5-6.)

The Regulations provide for the situation, as here, where a claimant's file cannot be located:

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. (In this way, we will be able to determine that your disability continues at the earliest point without addressing the often lengthy process of reconstructing prior evidence.) If you cannot engage in substantial gainful activity currently, your benefits will continue unless one of the second group of exceptions applies (see paragraph (b)(4) of this section). 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 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. The documentation of your current impairments will provide a basis for any future reviews. If the missing file is later found, it may serve as a basis for reopening any decision under this section in accordance with § 416.988.
20 C.F.R. § 416.994(b)(2)(iv)(E) (emphasis added).

The Commissioner contends that, because the ALJ did not make the threshhold determination whether to reconstruct Plaintiff's administrative file, it is not possible to determine "whether a fully developed record would lead only to the conclusion that Plaintiff did not experience medical improvement." (Commissioner's Mem. in Opposition to Plaintiff's Motion for Judgment on the Pleadings at 5.) The Commissioner's analysis, however, is not consistent with the foregoing Regulation or the presumption of continued disability set forth in De Leon. For example, the foregoing Regulation provides that upon an initial determination that a claimant cannot engage in gainful activity, benefits continue unless certain exceptions apply. If the Commissioner determines that a claimant is able to engage in gainful activity, then the Commissioner decides whether the files should be recreated. If the Commissioner does not attempt to recreate the file or if it cannot be recreated, then the Regulation provides that medical improvement cannot be found. In addition, the documentation of a claimant's current impairments provides the basis for future review of a claimant's disability status. The Regulation clearly requires the Commissioner to take affirmative steps in order to determine that a claimant's disability status has changed due to medical improvement.

"In a termination case such as this, where the [Commissioner] has failed to meet the burden of the medical improvement standard, the principles of fairness and administrative consistency considered in De Leon require a reversal rather than a remand of the [Commissioner's] decision to spare the claimant the frustration and uncertainty of further administrative proceedings." Velazquez v. Heckler, 586 F. Supp. 125, 127 (S.D.N.Y. 1984); see also Parente v. Heckler, 735 F.2d 743, 745 (2d Cir. 1984) ("first to classify a claimant as disabled and then to draw precisely the opposite legal conclusion without substantial evidence of improvement violates not only the termination statute but basic considerations of fairness"). Because the ALJ did not apply the appropriate legal standard and did not attempt to reconstruct Plaintiff's administrative file, the Court cannot conclude that the Commissioner has rebutted the presumption of Plaintiff's continuing disability. Accordingly, Plaintiff's disability benefits shall be restored. The Commissioner, of course, is free to assess Plaintiff's disability status in future. See Jones v. Bowen, 679 F. Supp. 133, 137 (D.Mass. 1988).


For the foregoing reasons, Defendant's motion for remand is denied and Plaintiff's motion for judgment on the pleadings is granted. Plaintiff is hereby reinstated as eligible for disability benefits retroactive to the date of termination which was February 1998. Judgment shall be entered in Plaintiff's favor and this case shall be closed.



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