1 16-1500-cv Hathaway v. Berryhill



### UNITED STATES COURT OF APPEALS
FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



### At a stated term of the Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 18 th 

### day of April, two thousand seventeen.

PRESENT: P ETER 

### W. H ALL



### , C HRISTOPHER 

### F. D RONEY



### , Circuit Judges

, V ICTOR 

### A. B OLDEN



### , District Judge

. 



### ---------------------------- ---------------------------- -------------- B OBBIE 

### J EAN 

### H ATHAWAY



### , Plaintiff-Appellant

,

v. No. 16-1500-cv
N ANCY 

### A. B ERRYHILL


### , A CTING 

### C OMMISSIONER OF 

### S OCIAL 

### S ECURITY



### , 2 

### Defendant-Appellee.

---------------------------- ---------------------------- --------------

FOR PLAINTIFF-APPELLANT: Mark Schneider, New York, New York.

FOR DEFENDANT-APPELLEE: Emily M. Fishman, Special Assistant U.S. Attorney (Stephen P. Conte, Regional Chief Counsel – Region II, Office of the General Counsel, Social Security Administration, on the brief ) for Richard S. Hartunian, United States

 Judge Victor A. Bolden, United States District Court for the District of Connecticut, sitting by designation.
2 Pursuant to Federal Rule of Appellate Procedur e 43(c)(2), Acting Commissioner Nancy A. Berryhill is automatically substituted for former Commissioner Carolyn Colvin as Defendant.2 

### Attorney for the Nort hern District of New York, Syracuse, New York.

Appeal from judgment of the United States Di strict Court for the Northern District of New York (Scullin, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and the matter REMANDED

.

Plaintiff-Appellant Bobbie Jean Hathaway appe als from the judgment of the district court denying her appeal of an administ rative law judge’s (“ALJ”) decision that terminated her social security benefits. Hathaway had been granted Supplemental Security Income benefits in 1996
based on her intellectual func tioning and a seizure disorder. In 2001 and 2006, the Social Security Administration (“SSA”) continued those benef its after reviewing her case and finding her still eligible. 2 In 2012, the SSA conducted another revi ew and determined that she was no longer disabled because she had shown sufficien t improvement from her previous conditions.

Hathaway requested review through the SSA ’s administrative process, each time being denied, including at a hearing before an ALJ in 2013. At that review, the ALJ reviewed recent medical records regarding Hathaway’s mental capacity, seizures, and back pain before terminating her benefits. Hathaway requested review by the Appeals C ouncil of the SSA, which
was denied as the Commissioner’s final decision. She then filed suit in the United States District
Court for the Northern District of New Yor k. In 2016, the district court affirmed the
Commissioner’s final decisi on, and this appeal followed. We assume the parties’ familiarity with the underlying facts, the procedural histor y of the case, and th e issues on appeal.

This Court reviews the administrative record de novo to determine if there is substantial evidence to support the Commissione r's decision and if the correct legal standards were applied. See Brault v. Soc. Sec. Admin., Comm'r , 683 F.3d 443, 447 (2d Cir. 2012) ( per curiam ). The
substantial evidence standard means that once an AL J finds facts, the Court can reject those facts “only if a reasonable factfinder would have to conclude otherwise. ” Id . (emphasis in original).

After a person has been found to be entitled to disabil ity benefits from the SSA, his entitlement is to be periodically reviewed. See 42 U.S.C. § 421(i). If there is substantial evidence that “there has been any medical improvement in the individual’s impairme nt or combination of impairments” that relates to his or her ability to work, such that “the in dividual is now able to engage in substantial gainful activity,” the indivi dual may be determined to be no longer entitled
to benefits. Id. § 423(f)(1).

2 According to the record, the “most recent favorable dete rmination is the Title 16 continuance of 12/01.” R-86 When the 2001 review was performed, “the impairment considered was epilepsy.” R-86 The 2006 determination was based on her 1996 material, which suggests that the determination in 2006 was based on her cognitive impairment and mental retardation along with her seizures. See R-86 (“The most recent fa vorable determination on her claim is the allowance in 2/06, but this determination was based on the information from 1996 and earlier, and should have been an adoption per collateral estoppel of the ALJ decision.”).3 When reviewing appeals where a claimant is denied previously-receiv ed benefits on the basis of medical improvement, “ Congress intended the Secretary to compare an applicant’s
condition at the time of review with his or her condition at the time benefits were initially granted.” De Leon v. Secretary of Health & Human Services , 734 F.2d 930, 936 (2d Cir. 1984). This “comparative standard” should be used to determine whethe r the individual’s condition has “improve[d] to the point where he or she is able to engage in substantial activity,” and if he or she has so improved, then “benefits are no lo nger justified, and may be terminated by the Secretary.” Id. at 937.

The “SSA must compare ‘the current medical severity of th[e] impairment[]. . . to the medical severity of that impairment[] at th[e ] time’ of the most recent favorable medical
decision.” Veino v. Barnhart , 312 F.3d 578, 586-87 (2d Cir. 2002) (quoting 20 C.F.R. § 404.1594(b)(7)). To make this comparison, th e Commissioner must examine the medical
evidence that existed at the time of the initial disability determination and compare it to the new medical evidence, and submit both sets of medical evidence to this Court. Id . at 587. Absent these previous medical records, “the administ rative record lacks a f oundation for a reasoned
assessment of whether there is substantial eviden ce to support the Commi ssioner's finding that [a present] condition represents an ‘improvement.’” Id.

Plaintiff received a letter notifying her that her benefits were being reviewed in September 2011. She then filled out a questionnaire in which she indicated that she had ongoing cognitive problems and seizures in addition to her back problems. See R-161 (“I have memory loss and petit mal seizures.”); R-165 (“Sometime s I forget what I am saying when I am on the phone . . . because of my seizures.”). She ther efore met the limited burden of “introduc[ing]
evidence” that her cond ition is the same as at the tim e of the earlier determination. See De Leon

, 734 F.2d at 937. 3

Here, the ALJ failed to compare medical eviden ce of Hathaway’s condi tion at the time of the hearing in August 2013 to medical eviden ce of her condition in 1996, 2001, or 2006 when she had been found to be disabled on the gr ounds of her mental capacity and seizures. 4 The ALJ’s ruling only discussed current medical re ports regarding impairments of her mental capacity, her back pain, and her seizures. See SA-6–8. The administrativ e ruling stated that

[t]he medical evidence supports a finding that, as of January 10, 2012, there had been a decrease in medical severity of th e impairments. The record reflects that
the claimant's seizure disorder is curre ntly well-controlled by her medication. Furthermore, as discussed below, the me dical evidence shows that the claimant has experienced improvement in her lumbar spine impairments, as documented on

3 Notably, a teleclaim form filled out in February 2012 (as part of plaintiff’s appeal of her denial of benefits) notes that the “Presumptive Disability” page was not part of the record because “there is no initial level SSI claim on this
case.” R-169.
4 Plaintiff’s initial disability determin ation (in 1996) occurred under Listi ng 12.05(C), which requires different elements than the Listing 12.02 that the ALJ applied. The medical consultant in 2011 discussed both 12.02 and 12.05(c). See R-290-92. The district court affirmed th e ALJ’s decision despite his error in reviewing the plaintiff’s evidence under Listing 12.02, because “sub stantial evidence supports a conclusion that Plainti ff does not suffer from an adaptive functioning deficit” and therefore plaintiff “d id not show that she suffers from ‘all of the specified medical criteria’ required by Listing 12.05(c).” SA-22.4 a June 2013 MRI, despite her subjective repo rts to the contrary. The claimant also reported at the hearing that she has no significant mental restrictions from working.
SA-8.

In arriving at this conclusion, the ALJ did not cite or discuss any medical evidence that supported the initial finding of plaintiff’s disability in 2001 or 2006, as is required under Veino
and De Leon

. See Veino , 312 F.3d at 587 (requiring medical eviden ce for the Court to be able to conduct “a reasoned assessment” of any “improvement”); De Leon , 734 F2d. at 936 (requiring the comparative approach). There was similarly no evidence in the record about either the 1995- 96 hearing and determination on the basis of mental retardation, or the 2001 continuing disability
review. Some of the 1990s-era medical records were summarized by the medical consultant, but that is the type of summary speci fically prohibited by this Court. See Veino , 312 F.3d at 587; R291.

In addition, the ALJ did not make any fi ndings in 2012 regarding Hathaway’s IQ or cognitive limitations, and did no t compare plaintiff’s Listing 12.05( c) qualifications in 2001 or 2006 to her qualifications in 201 2. In fact, he noted that sh e had “no significant mental restrictions from working” despit e this Court’s previous suggesti on that a person’s IQ is unlikely to “improve.”; see Douglass v. Astrue , 496 F. App'x 154, 156 (2d Cir. 2012) (noting that “[a] claimant's intellectual ability is not typi cally something that improves with time”).

For the foregoing reasons, we find that the ALJ’s decision was not based on substantial
evidence because we lack sufficient medical record s from the initial determination of disability. We therefore VACATE the judgment of the distri ct court and REMAND to the administrative law judge for further considerati on in accordance with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court