BOBBY BARRINGER, 

Plaintiff, 

v. 

MICHAEL J. ASTRUE, 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Civil Action 2:11-cv-534 

Judge Michael H. Watson 

Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

ORDER 

Plaintiff, Bobby Barringer, brings this action under 42 U.S.C. §§ 405(g) and 

1383( c)(3) for review of a final decision of the Commissioner of Social Security 

("Commissioner'') finding a closed period of disability from February 12, 2007, through 

March 31, 2009. This matter is before the Court for consideration of the August 16, 

2012 Report and Recommendation of the United States Magistrate Judge (ECF No. 16) 

and Plaintiff's Objections to the Report and Recommendation (ECF No. 17). For the 

reasons that follow, the Court OVERRULES Plaintiff's Objections, ADOPTS the Report 

and Recommendation, and AFFIRMS the Commissioner's decision. 

I. 

If a party objects within the allotted time to a report and recommendation, the 

Court "shall make a de novo determination of those portions of the report or specified 

proposed findings or recommendations to which objection is made." 28 U.S.C. 

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§ 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court "may accept, reject, 

or modify, in whole or in part, the findings or recommendations made by the magistrate 

judge." 28 U.S.C. § 636(b)(1). 

The Court's review "is limited to determining whether the Commissioner's 

decision 'is supported by substantial evidence and was made pursuant to proper legal 

standards."' Ealy v. Comm'rof Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting 

Rogers v. Comm'rof Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. 

§ 405(g) ("The findings of the Commissioner of Social Security as to any fact, if 

supported by substantial evidence, shall be conclusive .... "). Put another way, a 

decision supported by substantial evidence is not subject to reversal, even if the 

reviewing court might arrive at a different conclusion. Mullen v. Bowen, 800 F.2d 535, 

545 (6th Cir. 1986). "Substantial evidence exists when 'a reasonable mind could accept 

the evidence as adequate to support a conclusion [and] ... presupposes that there is a 

zone of choice within which the decision-makers can go either way, without interference 

by the courts.'" Blakley v. Comm'rof Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) 

(internal citation omitted). Even if supported by substantial evidence, however, "'a 

decision of the Commissioner will not be upheld where the [Commissioner] fails to 

follow its own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right."' Rabbers v. Comm'rof Soc. Sec., 582 F.3d 

647, 651 (6th Cir. 2009) (quoting Bowen v. Comm'rof Soc. Sec., 478 F.3d 742, 746 

(6th Cir. 2007)). 

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II. 

The Court has conducted a de novo review and agrees with the reasoning and 

analysis of the Magistrate Judge. In his Objections, Plaintiff submits many of the same 

arguments as he did in his Statement of Errors. Specifically, he again posits that the 

administrative law judge ("ALJ") erred in finding medical improvement in April 2009 

because substantial evidence does not support such a finding. Plaintiff further asserts 

that the ALJ failed to properly premise her finding of medical improvement on specific 

findings in the record as required by 20 C.F.R. § 404.1594. 

In analyzing these contentions of error, the Magistrate Judge first set forth the 

relevant authority as follows: 

In cases such as this one, in which an ALJ awards a closed period 

of benefits, an ALJ "must find a medical improvement in the claimant's 

condition to end his [or her] benefits, a finding that requires 'substantial 

evidence' of a 'medical improvement' and proof that he [or she] is 'now 

able to engage in substantial gainful activity."' Niemasz v. Barnhart, 155 

F. App'x 836, 840 (6th Cir. 2005) (quoting 42 U.S.C. § 423(f)(1)). 

Furthermore, the medical improvement must be related to the ability to 

work. McNeal v. Comm'r of Soc. Sec., No. 3:11-cv-161, 2012 WL 

748834, at *8 (S.D. Ohio Mar. 7, 2012). Despite this approach, however, 

"there is no presumption of continuing disability." Kennedy v. Astrue, 247 

F. App'x 761, 764 (6th Cir. 2007) (citing Cutlip, 25 F.3d at 286-87 n. 1). 

In 20 C.F.R. §§ 404.1594 and 416.944, the Regulations outline the 

process for considering medical improvement and whether a claimant's 

disability period has ended. The United States Court of Appeals for the 

Sixth Circuit has described medical improvement as follows: 

The implementing regulations define a medical improvement 

as "any decrease in the medical severity of your impairment( s) 

which was present at the time of the most recent favorable 

medical decision that you were disabled or continued to be 

disabled." 20 C.F.R. § 404.1594(b)(1 ). A determination of 

medical improvement "must be based on changes 

(improvement) in the symptoms, signs and/or laboratory 

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findings associated with your impairment(s)." /d. And a 

medical improvement is related to an individual's ability to work 

only "if there has been a decrease in the severity . . . of the 

impairment( s) present at the time of the most recent favorable 

medical decision and an increase in your functional capacity to 

do basic work activities ... " 20 C. F. R. § 404.1594(b )(3 ). See 

a/so Nierzwick v. Commissioner of Social Security, 7 Fed. 

Appx. 358 (6th Cir. 2001 ). 

Kennedy, 247 F. App'x at 764-65. In other terms, medical improvement 

"is determined by a comparison of prior and current medical evidence ... 

. " 20 C.F.R. §§ 404.1594(c)(1), 416.994(b)(2)(i). If medical improvement 

occurs, the ALJ will then conduct a new RFC assessment and compare 

that assessment to the prior RFC to determine if the medical improvement 

is related to a claimant's ability to work. /d. "Unless an increase in the 

current residual functional capacity is based on changes in the signs, 

symptoms, or laboratory findings, any medical improvement that has 

occurred will not be considered to be related to [the claimant's] ability to 

do work." /d. The Regulations further provide that "[a] decrease in the 

severity of an impairment as measured by changes (improvement) in 

symptoms, signs or laboratory findings can, if great enough, result in an 

increase in the functional capacity to do work activities." 20 C.F.R. 

§§ 404.1594(b )( 4 )(i), 416.994(b )(iv)(A). 

(Report and Rec. 13-15, ECF No. 16.) 

Applying the foregoing authority, the Magistrate Judge analyzed the issues 

presented in the instant case as follows: 

In this case, as set forth above, the ALJ found disability during the 

closed period "[d]ue to fluctuating sugar levels." (R. at 25.) Upon 

comparing the medical evidence, she concluded that Plaintiff's fluctuating 

sugar levels had improved as of April 2009. Plaintiff does not challenge 

that improvement with respect to his ability to control his sugar levels 

relates to his ability to work. Instead, as set forth above, Plaintiff 

maintains that the ALJ failed to "cite any ... data or evidence in her 

determination that medical improvement had occurred" and that her 

finding of improvement is "not supported by substantial evidence in the 

record." (Pl.'s Statement of Errors 3, ECF No. 11.) 

Contrary to Plaintiff's assertion, substantial evidence supports the 

ALJ's finding of medical improvement. Further, the ALJ supported her 

decision with specific references to the record, taking great care to 

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compare the evidence from the closed period with the more recent 

medical evidence. 

In her decision, the ALJ first thoroughly described the severity of 

Plaintiff's fluctuating sugar levels before he began utilizing an insulin 

pump. For example, she noted that in 2006, Plaintiff was hospitalized with 

blood sugar levels running in the 500s. She pointed out that in 2007, Dr. 

Shu brook indicated that Plaintiff was at risk for complications arising from 

his glucose levels. She also noted that in June 2007, Dr. Freeman 

reported that an EMG study revealed diabetic neuropathy. The ALJ also 

considered Dr. Lionberger's documentation of Plaintiff's fluctuating sugar 

levels during the closed period. She noted that Plaintiff was again 

admitted to a hospital in April2008 for uncontrolled hyperglycemia and 

that on follow-up in June 2008, Plaintiff continued to complain of 

fluctuating sugar levels. (R. at 30.) 

The ALJ contrasted this medical evidence with the more recent 

records demonstrating that Plaintiff's fluctuating sugar levels had 

improved. For example, the ALJ considered Dr. Shubrook's notes from 

December 2008, after Plaintiff began utilizing an insulin pump, in which he 

reported that Plaintiff was "doing ok" and that "[o]verall he is much better 

than last year." (R. at 30, 773.) She noted that in December 2008, 

Plaintiff also reported to the Holzer Clinic that his sugars were controlled 

with the insulin pump. The ALJ considered that in April 2009, Dr. 

Shrubrook again reported that Plaintiff was "doing well overall" and that 

his physical exam was normal with the exception of right lower extremity 

pain that Dr. Shubrook opined was muscle-related and could be treated 

with stretching and massage. (R. at 30-31, 770.) She noted that in May 

2009, Plaintiff was following a diabetic diet, walking for exercise, mowing 

the grass, and his physical examination was normal. Finally, the ALJ 

pointed out that Plaintiff had testified to this improvement himself, 

representing that before the insulin pump, his sugar levels ran in the 600-

700 range contrasted with 200-300 range after the pump. Consistently, in 

April 2009, Plaintiff reported to Dr. Shubrook that he was doing better. 

Because substantial evidence supports the ALJ's finding of medical 

improvement, the undersigned RECOMMENDS that the Court 

OVERRULE Plaintiff's first statement of error. 

(/d. at 15-16.) 

Plaintiff offers no authority in his Objections that undermines the Magistrate 

Judge's determination with regard to this issue. Instead, he asserts that "[i]t is common 

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knowledge that blood sugars in the 200-300 range is not 'doing well' or 'substantially 

improved' but is in fact much higher than the recommended 90-120 blood sugar range." 

(Pl.'s Objections 2, ECF No. 17.) Plaintiff's argument is unpersuasive. Evidence 

suggesting that Plaintiff's blood sugars remained above recommended ranges does not 

require the conclusion that Plaintiff experienced no medical improvement. As the 

Magistrate Judge noted, in addition to the laboratory findings of lowered levels, the ALJ 

also properly relied upon evidence in the record noting improvement in Plaintiff's 

symptoms, including reports from Plaintiff's treating physicians; the absence of 

hospitalizations after utilization of the insulin pump as compared with the closed period; 

and Plaintiff's own testimony concerning his improvement and increased activities. The 

Court concludes that substantial evidence supports the ALJ's finding of medical 

improvement. The Court, therefore, finds Plaintiff's Objections to be without merit. 

Ill. 

For the reasons set forth above, the Court OVERRULES Plaintiff's Objections 

(ECF No. 17), ADOPTS the Report and Recommendation (ECF No. 16), and AFFIRMS 

the Commissioner's decision. 

IT IS SO ORDERED. 

'~§ON, JUDGE 

UNITED STATES DISTRICT COURT 

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