Waters v. Barnhart

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-41432
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JAMES R. WATERS,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________

January 8, 2002

Before JOLLY and PARKER, Circuit Judges, and SPARKS,1 District
Judge.

E. GRADY JOLLY, Circuit Judge:

Waters sought disability benefits from the Social Security

Administration based on a broken ankle and other related injuries.

An Administrative Law Judge (“ALJ”) awarded Waters disability for

a closed period –- that is, between November 27, 1993 and November

5, 1996. In determining the cessation date for the period, the ALJ

principally placed the burden on Waters to show that his disability

continued past this date. Following the lead of a number of our

1
District Judge of the Western District of Texas, sitting by
designation.
sister circuits, we adopt the “medical improvement” standard in

these closed period cases. This standard places the initial burden

on the government to show that the claimant’s disability has ended

as of the cessation date. We thus reverse and remand to the

district court with instruction to remand to the Social Security

Administration for further proceedings not inconsistent with this

opinion.

On March 1, 1995, Waters applied for both disability benefits

and supplemental security income based on an ankle injury he

suffered when he slipped on some ice while using a sledge hammer.

The Commissioner of the Social Security Administration denied

Waters benefits. Waters requested a hearing before an

administrative law judge. At the hearing, the ALJ decided to send

Waters to a doctor for a conclusive evaluation. Waters agreed to

see the doctor. The next month, Dr. James Harris examined Waters

on behalf of the ALJ. Dr. Harris reported that Waters’ broken

ankle was healing nicely, and that Waters “has many signs and

symptoms that appear to be nonphysiologic.” Based on this report,

the ALJ issued a partially favorable ruling -- effectively finding

that Waters had no continuing disability but that he did have a

disability for the closed period between the time of his ankle

injury on November 27, 1993 and his visit to Dr. Harris on November

5, 1996. The Appeals Council denied Waters’ request for review.

2
Waters then acquired representation and filed a complaint in the

district court. The complaint alleged, inter alia, that the ALJ

had applied the wrong legal standard to evaluate the cessation date

for his closed period of benefits. This is the only issue we

address in this appeal.

The district court, adopting the magistrate judge’s

recommendation, affirmed the Commissioner. Waters now appeals.

In Social Security disability cases, 42 U.S.C. § 405(g)

governs the standard of review. Frith v. Celebrezze, 333 F.2d 557,

560 (5th Cir. 1964). In the Fifth Circuit, appellate review is

limited to (1) whether the Commissioner applied the proper legal

standard; and (2) whether the Commissioner’s decision is supported

by substantial evidence. See Estate of Morris v. Shalala, 207 F.3d

744, 745 (5th Cir. 2000)(citations omitted). In this case, the ALJ

used a five-step sequential analysis to determine the beginning and

the end date for the “closed period” of Waters’ disability. Courts

and the Social Security Administration typically use this type of

analysis to decide whether -- as a threshold matter -- a person is

disabled. The five-step analysis is:

First, the claimant must not be presently
working. Second, a claimant must establish
that he has an impairment or combination of
impairments which significantly limit [his]
physical or mental ability to do basic work
activities. Third, to secure a finding of
disability without consideration of age,
education, and work experience, a claimant

3
must establish that his impairment meets or
equals an impairment in the appendix to the
regulations. Fourth, a claimant must
establish that his impairment prevents him
from doing past relevant work. Finally, the
burden shifts to the Secretary to establish
that the claimant can perform the relevant
work. If the Secretary meets this burden, the
claimant must then prove that he cannot in
fact perform the work suggested.

Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991)(internal

citations and quotation marks omitted). It is important to note

that the claimant bears the burden of proof with respect to the

first four steps of the analysis, with the burden shifting to the

Commissioner for the final step. Jones v. Bowen, 829 F.2d 524, 526

(5th Cir. 1987). In the instant case, the ALJ terminated the

analysis at step four, finding that “subsequent to November 5,

1996, the claimant retains the residual functional capacity to

perform the exertional demands of light work, or work which

requires maximum lifting of twenty pounds and frequent lifting of

ten pounds.” Basically the ALJ found that Waters had failed to

prove that his ankle injury prevented him from doing past relevant

work after November 5, 1996, the date of his visit with Dr. Harris.

Accordingly, he was not disabled after this date.

Waters argues that the government should have to prove

“medical improvement” when defining the cessation date for a closed

period of benefits. The primary difference between the standard

employed by the ALJ and the “medical improvement” standard

advocated by Waters is the allocation of the burden of proof.

4
Under the medical improvement standard, the government must, in all

relevant respects, prove that the person is no longer disabled.

See 42 U.S.C. § 423(f); Griego v. Sullivan, 940 F.2d 942, 943-44

(5th Cir. 1991). In contrast, as noted above, the ALJ in this case

placed the burden on Waters to show that his ankle injury prevented

him from doing past relevant work after November 5, 1997 (to prove

step four in the five-step disability threshold analysis).

A number of the circuits have adopted the “medical

improvement” standard in cases similar to the case before us. See

Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir. 1999) (“We are

persuaded by these other circuits that applying the medical

improvement standard to cases involving a closed period of

disability is consistent with the language and legislative purpose

in the Reform Act.”); Jones v. Shalala, 10 F.3d 522 (7th Cir. 1993)

(applying the medical improvement standard in the review of closed

period case); Chrupcala v. Heckler, 829 F.2d 1269, 1274 (3d Cir.

1987) (“Fairness would certainly seem to require an adequate

showing of medical improvement whenever an ALJ determines that

disability should be limited to a specified period.”); Pickett v.

Bowen, 833 F.2d 288, 292 (11th Cir. 1987) (“Consequently, we

discern from the broad remedial policies underlying the Disability

Amendments that Congress intended to reach ‘closed period’

claimants.”).2

2
In fact, at oral argument the government conceded that this
was the appropriate standard for finding the cessation date in

5
The Fifth Circuit, however, has stated in dicta that the

medical improvement standard applies only in termination cases –-

that is, where the government seeks to halt the ongoing payment of

benefits. See Richardson v. Bowen, 807 F.2d 444, 445 (5th Cir.

1987). In Richardson, at a disability review hearing, an ALJ

terminated the claimant’s disability payments. Rather than timely

appealing this ruling, the claimant filed a new application asking

the Commissioner to reopen his case. This request was denied. Id.

at 445. The Richardson court was thus confronted with deciding the

conditions under which the Commissioner could refuse to reopen a

case; the issue of the applicability of the medical improvement

standard to closed period cases was not squarely before the court.

See Shepherd, 184 F.3d at 1200 n.4. Thus, any statements in

Richardson regarding the limitations on the use of the medical

improvement standard are not binding with respect to the issue in

this case.3

Approaching the issue as one of first impression, we think

that our sister circuits’ approach is more persuasive than that

suggested by the Richardson dicta. Through the Reform Amendments,

closed period cases.
3
In Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994), a panel
of the Fifth Circuit applied, without any analysis, the five-step
sequential analysis for determining disability in a closed period
case. Because the Bowling court was not confronted with the issue
of what was the appropriate standard of review in closed period
cases (there is no discussion of this issue), the case does not
stand for the proposition that the medical improvement standard is
inappropriate.

6
Congress explicitly required a showing of medical improvement

before the Commissioner could halt the payment of benefits in a

termination case. See 42 U.S.C. § 423(f)(1); Griego v. Sullivan,

940 F.2d at 943-44. In the typical disability case, a claimant’s

application for benefits is decided while he is under a continuing

disability. Once the application is granted, payments continue in

accord with that decision. Termination of the benefits then

involves a subsequent hearing -- a termination case -- in which the

Commissioner reviews (and decides whether to terminate) the

continued payment of benefits. In contrast, in a closed period

case, “the decision-maker determines that a new applicant for

disability benefits was disabled for a finite period of time which

started and stopped prior to the date of his decision.” Pickett v.

Bowen, 833 F.2d at 289 n.1. Thus, in closed period cases, the ALJ

engages in the same decision-making process as in termination

cases, that is, deciding whether (or, more aptly, when) the

payments of benefits should be terminated. Accordingly, we follow

the Tenth, Seventh, Eleventh, and Third Circuits in holding that

the medical improvement standard applies to the cessation date in

closed period cases.4 The district court’s judgment is reversed

4
Because we are reversing the district court and remanding for
further consideration, the government’s motion for remand is denied
on grounds of mootness. Furthermore –- also essentially for
reasons of mootness -- we see no need to address Waters’ due
process claims that he was effectively denied counsel and that he
signed a constitutionally impermissible waiver of his right to
examine post-hearing medical evidence. He is now represented by
counsel and, in the light of this appeal that remands for a

7
and the case is remanded with instruction to remand to the Social

Security Administration for further proceedings not inconsistent

with this opinion.

REVERSED AND REMANDED

rehearing, there is no indication that he has suffered any injury
as a result of these alleged constitutional violations. To further
assure this fact, we hold that any waivers made prior to this
appeal are not binding in any proceeding conducted in accordance
with this remand.