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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

BERTHA ALICE GUSTAFSON,

 Plaintiff,

vs.

ANDREW M. SAUL, COMMISSIONER 

OF THE SOCIAL SECURITY 

ADMINISTRATION,

 Defendant.

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SA-20-CV-00393-ESC

ORDER

This order concerns Plaintiff’s request for review of a decision of the Social Security 

Administration to terminate her disability insurance benefits under Title II of the Social Security 

Act, based on a finding of medical improvement. 42 U.S.C. §§ 405(g), 1383(c)(3). After 

considering Plaintiff’s Original Brief [#12], Defendant’s Brief in Support of the Commissioner’s 

Decision [#14], Plaintiff’s Reply Brief [#15], the transcript (“Tr.”) of the administrative

proceedings [#9], the other pleadings on file, the applicable case authority and relevant statutory

and regulatory provisions, and the entire record in this matter, the Court concludes that the 

Commissioner committed reversible legal error in the administrative proceedings and substantial 

evidence does not support the Commissioner’s decision to terminate Plaintiff’s benefits based on 

a finding of medical improvement. The Commissioner’s decision will therefore be VACATED 

and this case REMANDED for further fact-finding consistent with this opinion. 

I. Jurisdiction

This Court has jurisdiction to review a decision of the Social Security Administration 

pursuant to 42 U.S.C. § 405(g). The undersigned has authority to enter this Order pursuant to 28 

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U.S.C. § 636(c)(1), as all parties have consented to the jurisdiction of a United States Magistrate 

Judge [#8, #10].

II. Legal Standard

In reviewing the Commissioner’s decision to terminate disability benefits, the Court is 

limited to a determination of whether the Commissioner, through the ALJ’s decision,1applied 

the proper legal standards and whether the Commissioner’s decision is supported by substantial 

evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 

1383(c)(3). “Substantial evidence is more than a scintilla, less than preponderance, and is such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Villa 

v. Sullivan, 895 F.2d 1019, 1021–22 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 

164 (5th Cir. 1983)). The Court may not reweigh the evidence or substitute its judgment for that 

of the Commissioner. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Conflicts in the 

evidence and credibility assessments are for the Commissioner, not the court, to resolve. Id. 

While substantial deference is afforded the Commissioner’s factual findings, the Commissioner’s 

legal conclusions, and claims of procedural error, are reviewed de novo. See Greenspan v. 

Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

In determining whether a claimant is under a continuing disability or there has been

medical improvement and disability benefits should be terminated, the Commissioner employs 

the eight-step sequential framework set forth in the governing regulations. See 20 C.F.R. § 

404.1594(f). This approach considers the following: (1) whether the claimant is currently 

engaged in substantial gainful activity, (2) if not, whether the claimant has an impairment or 

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In this case, because the Appeals Council declined to review the ALJ’s decision, the 

decision of the ALJ constitutes the final decision of the Commissioner, and the ALJ’s factual 

findings and legal conclusions are imputed to the Commissioner. See Higginbotham v. Barnhart, 

405 F.3d 332, 336 (5th Cir. 2005); Harris v. Apfel, 209 F.3d 413, 414 (5th Cir. 2000). 

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combination of impairments that meets or equals the severity of an impairment enumerated in the 

relevant regulations, (3) if not, whether there has been medical improvement, (4) if there has 

been medical improvement, whether the medical improvement is related to the claimant’s ability 

to do work, (5) if there has been no medical improvement, or if the medical improvement is not 

related to the claimant’s ability to do work, whether one of the enumerated exceptions to medical 

improvement is applicable, (6) if there has been medical improvement related to the claimant’s 

ability to do work, or if one of the first group of exceptions is applicable, whether the 

combination of remaining impairments is severe, (7) if so, whether the claimant is able to engage 

in past relevant work, and (8) if not, whether the claimant is able to perform other substantial 

gainful activity. Griego v. Sullivan, 940 F.2d 942, 944 & n.1 (5th Cir. 1991) (citing 20 C.F.R. § 

404.1594(f)). In determining medical improvement in disability termination proceedings, the 

ultimate burden of proof lies with the Commissioner. Id. at 944.

III. Factual Background

This case concerns the termination of disability benefits due to a finding of medical 

improvement. Plaintiff Bertha Alice Plaintiff filed a claim for disability insurance benefits 

(“DIB”) in 2008 based on a seizure disorder. In 2009, Plaintiff was found disabled based on a 

determination that her seizure disorder was a severe impairment and, as of May 7, 2008, met the 

criteria for Listing 11.03, the listing governing epilepsy at the time. (Tr. 68–71.) Plaintiff

received disability benefits in the amount of $863 per month for years, until February 2016, 

when she was advised that the Social Security Administration (“SSA”) was performing “a 

continuing disability” review in order to determine whether she was still disabled. (Tr. 320, 

324.) 

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On October 12, 2016, the SSA advised Plaintiff that she was no longer disabled due to a 

finding of medical improvement and would stop receiving benefits as of December 2016. (Tr. 

151–52.) Plaintiff requested reconsideration of the decision, but the decision was upheld in a 

decision by a State Agency Disability Hearing Officer. (Tr. 162–83.) Plaintiff made a timely

request for review and a hearing before an administrative law judge (“ALJ”). (Tr. 187.) 

Plaintiff and her attorney Greg Reed attended the administrative hearing before ALJ

Katherine Brown on October 23, 2018. (Tr. 106–46.) Plaintiff, vocational expert (“VE”) Ms. 

Johnson, and Plaintiff’s husband, Dr. Malcolm Gustafson, provided testimony at the hearing. 

(Id.) At the time of her hearing, Plaintiff was 55 years old, an individual “closely approaching 

advanced age,”2and had obtained a high school diploma. (Tr. 111, 140.) Plaintiff had past work 

as a fast food worker and a hostess. (Tr. 138, 140.) Plaintiff and her husband both testified that 

Plaintiff has suffered from seizures since she was 16 years old; that she continues to take seizure 

medication; and that the medication causes significant side effects such as confusion, dizziness, 

and loss of balance. (Tr. 123–24.) 

Both Plaintiff and her husband also testified that Plaintiff continues to suffer from an 

average of 10 to 15 petit mal seizures per week. (Tr. 125, 130–31.) Plaintiff testified that she 

experiences four or five grand mal seizures per week, but that these seizures usually occur at 

night. (Tr. 125, 130–31.) At the hearing before the ALJ, Plaintiff had visible marks on her arms 

and hands from where she has injured herself during petit mal seizures. (Tr. 123–24.) Plaintiff

explained to the ALJ that during these seizures, she loses awareness of what she is doing, and 

frequently falls to the ground and has bumped her head repeatedly during these episodes. (Tr. 

124–25.) Plaintiff and her husband both described Plaintiff as doing dangerous things when she 

2 By the time the ALJ issued her decision, Plaintiff had changed age categories to an 

individual of “advanced age” (age 55+). 

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is seizing, such as trying to hand a hot pan to her husband, thinking it is a plate of food. (Tr. 

124–25.) Plaintiff’s husband further testified that when Plaintiff is experiencing a seizure, she 

becomes nonresponsive or talks nonsensically in Spanish, her native language, or, more recently, 

in English. (Tr. 130.) When this occurs, Dr. Gustafson guides Plaintiff to bed, where she sleeps 

from 15 minutes to two hours after a seizure. (Id.) Dr. Gustafson started working from home six 

years before the ALJ’s hearing in order to care for Plaintiff and to monitor her safety. (Id. at 

135–36.) 

Despite this testimony, the ALJ issued an unfavorable decision on March 4, 2019, finding 

Plaintiff no longer disabled. (Tr. 17–24.) The ALJ determined that at the time of Plaintiff’s 

prior determination (which is known as the “comparison point decision” or “CPD” for purposes 

of determining medical improvement), Plaintiff had a seizure disorder that satisfied Listing 11.03 

and rendered her presumptively disabled. (Tr. 19.) The ALJ then applied the eight-step 

sequential analysis required by SSA regulations. At step one of the analysis, the ALJ found that 

Plaintiff had not engaged in substantial gainful activity through the date of her decision. (Tr. 

19.) Then, the ALJ found that the medical evidence establishes that Plaintiff did not develop any 

additional impairments after the CPD through the date of her decision but that Plaintiff’s seizure 

impairment remains severe. (Tr. 19–20.) The ALJ found, however, that, although Plaintiff

continues to suffer from a seizure disorder, there has been medical improvement of her 

condition, and that since October 12, 2016, it no longer satisfies the requirements of Listing 

11.02.

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 (Tr. 19.) Because the ALJ concluded Plaintiff was no longer presumptively disabled by 

satisfying a listing, the ALJ went on to the other steps in the sequential evaluation process.

3 Listing 11.02 is now the listing for seizure disorders and epilepsy. 

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Before reaching the next step of the analysis, the ALJ found Plaintiff retained the residual 

functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except 

that Plaintiff can never climb ladders, ropes, or scaffolds and can have no exposure to workplace 

hazards such as moving machinery, open flames or unprotected heights. (Tr. 20–23.) Then, the 

ALJ determined that Plaintiff has been capable of performing her past relevant work as a hostess 

and fast food worker since October 12, 2016. (Tr. 23–24.) Accordingly, the ALJ determined 

that Plaintiff’s disability ended on October 12, 2016, and she has not become disabled again 

since this date and is therefore no longer entitled to receive benefits. (Tr. 24.) 

Plaintiff requested review of the ALJ’s decision, but her request for review was denied by 

the Appeals Council on January 30, 2020. (Tr. 1–6.) Having exhausted all administrative 

remedies, Plaintiff brought the instant action on March 27, 2020, seeking judicial review 

pursuant to 42 U.S.C. § 405(g). 

IV. Analysis

Plaintiff raises two points of error in this appeal: (1) the ALJ’s finding that medical 

improvement occurred is not supported by substantial evidence and the ALJ failed to apply the 

appropriate legal standard in analyzing the medical evidence; and (2) the ALJ failed to fully 

account for Plaintiff’s seizure disorder in making her RFC determination. The Court agrees 

with Plaintiff’s first point of error and finds that the ALJ committed reversible legal error with 

respect to the finding of medical improvement. Because this error requires remand for further 

development of the record and additional proceedings, the Court need not and will not address 

Plaintiff’s second point of error.

Disability benefits may be terminated where substantial evidence demonstrates that 

“there has been any medical improvement in the individual’s impairment . . . (other than medical 

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improvement which is not related to the individual’s ability to work)” and “the individual is now 

able to engage in substantial gainful activity.” 42 U.S.C. § 423(f)(1). The implementing 

regulations define “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). Determining 

medical improvement and its relationship to a claimant’s ability to do work requires “a 

comparison of prior and current medical evidence which must show that there have been 

changes (improvement) in the symptoms, signs or laboratory findings associated with that 

impairment(s).” Id. at § 404.1594(c)(1) (emphasis added).

Importantly, in a termination of benefits case, the Agency bears the burden that a 

claimant is no longer disabled. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002) (citing 42 

U.S.C. § 423(f)). Termination of benefits is only appropriate when there is substantial evidence 

that “(1) there has been a medical improvement related to the ability to work, and (2) the 

individual is now able to engage in substantial gainful activity.” Teague v. Astrue, 342 F. App’x 

962, 964 (5th Cir. 2009).

The ALJ found that Plaintiff’s seizure disorder, though still severe, no longer satisfies the 

requirements of Listing 11.02, because medical improvement occurred as of October 12, 2016. 

(Tr. 19–20.) Listing 11.02 requires documentation of a typical seizure characterized by one of 

four descriptions:

A. Generalized tonic-clonic seizures, occurring at least once a month for 

at least 3 consecutive months despite adherence to prescribed 

treatment;

B. Dyscognitive seizures, occurring at least once a week for at least 3 

consecutive months despite adherence to prescribed treatment; 

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C. Generalized tonic-clonic seizures, occurring at least once every 2 

months for at least 4 consecutive months despite adherence to 

prescribed treatment; and a marked limitation in one of the following:

1. Physical functioning; 

2. Understanding, remembering, or applying information; 

3. Interacting with others; 

4. Concentrating, persisting, or maintaining pace; or

5. Adapting or managing oneself; or 

D. Dyscognitive seizures, occurring at least once every 2 weeks for at 

least 3 consecutive months despite adherence to prescribed treatment; 

and a marked limitation in one of the same five following functional 

categories as listed at (C). 

20 C.F.R. Pt. 404, Supt. P, App. 1, § 11.02 (effective Mar. 14, 2018). The ALJ found that 

Plaintiff’s symptoms do not meet or equal the symptoms listed in Listing 11.02, because the 

record “does not contain objective evidence” that Plaintiff continued to suffer from generalized 

tonic-clonic seizures (grand mal seizures) or dyscognitive seizures (petit seizures) at a frequency 

required by the Listing. (Tr. 19–20.) 

Plaintiff argues this was error because a finding of medical improvement requires a 

“comparison of prior and current medical evidence” and evidence of “changes (improvement) in 

the symptoms, signs or laboratory findings associated with that impairment(s).” See 20 C.F.R. § 

404.1594(c)(1). Yet, Plaintiff argues, the ALJ did not even discuss the 2008 and 2009 evidence 

that was the basis for the original disability determination. Plaintiff argues this alone precludes 

meaningful judicial review of the ALJ’s finding of medical improvement and requires remand. 

The Court agrees.

The medical evidence of record is minimal in this case. The record submitted by the 

Commissioner contains several treatment and office notes from Plaintiff’s treating providers, Dr. 

Linda Esquivel and Margaret Heller, PA-C, from 2016 through 2018, as well as Plaintiff’s recent 

seizure diary. PA Heller recorded an “increase in seizure episodes” in June 30, 2016 (Tr. 405),

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and Dr. Esquivel’s notes record that Plaintiff reported 14 to 25 petit mal seizures and one tonicclonic seizure per month in May 2017 (Tr. 488–89, 494); near daily seizures in November 2017, 

despite taking her medication (Tr. 503); and multiple seizures per day in May 2018 (Tr. 513). 

Plaintiff’s seizure diary from July 30, 3017 to September 1, 2018, reports that she experienced 18 

seizures in August 2017, 17 seizures in September 2017, 19 seizures in October 2017, 34 in 

November 2017, 23 in December 2017, 15 in January 2018, 16 in February 2018, 24 in March 

2018, 21 in April 2018, 19 in May 2018, 17 in June 2018, 16 in July 2018, and 23 in August 

2018 (Tr. 518–26). The record does not contain any of the original medical evidence upon 

which the SSA originally found Plaintiff disabled. 

The ALJ did not discuss any of the medical evidence in the portions of her opinion 

devoted to Listing 11.02 and the finding of medical improvement; she only generally cites to her 

consideration of the medical evidence as a whole. (Tr. 19–20.) However, in her analysis of 

Plaintiff’s RFC, the ALJ addressed the specific pieces of medical evidence that informed her 

decision that Plaintiff could perform light work, with certain modifications, despite her seizure 

disorder. (Tr. 20–23.) The Court has therefore considered this analysis in evaluating whether 

substantial evidence supports the ALJ’s finding of medical improvement in this case and whether 

any reversible legal error was committed in making this decision. 

In assessing Plaintiff’s RFC, the ALJ found that Plaintiff’s statements concerning the 

intensity, persistence, and limiting effects of her seizure disorder were not consistent with the 

objective medical evidence. (Tr. 21.) In reaching this conclusion, the ALJ discussed and relied 

upon the following medical evidence:

• In June 2016, Plaintiff had an office visit with PA Heller, during which it was noted 

that her seizures were controlled on medication and Plaintiff was directed to continue 

with her current medication dosage; that her seizures occurred mostly at night; and

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that Plaintiff was not scheduled to return for a follow up appointment until six months 

later in December 2016 (Tr. 405); 

• In February 2017, Plaintiff provided information regarding the frequency of her 

seizures and her medication dosages, and Plaintiff was still taking the prescribed 

Levetiracetam and Phenytoin for her seizures (Tr. 490); 

• In May 2017, Plaintiff reported to her treating physician Dr. Esquivel that she 

continued to experience 14 to 25 petit mal seizures and one grand mal seizure per 

month; but, despite Dr. Esquivel’s referral to a neurologist for adjustment of 

medication, Dr. Esquivel noted that Plaintiff “refuses to see neurology” (Tr. 494); 

• In May 2018, Dr. Esquivel noted the ongoing referral to neurology; Dr. Esquivel’s 

notes indicate that Plaintiff relayed she was not refusing to see a neurologist but that 

she could not afford to see one due to cost; Plaintiff provided Dr. Esquivel with her 

seizure diary, and a follow up was scheduled for three months later (Tr. 513).

(Tr. 20–22.) The ALJ also found the following to be significant factors impugning the 

credibility of Plaintiff regarding the reported frequency and intensity of her petit and grand mal 

seizures:

• No treating provider has ever witnessed one of Plaintiff’s seizures; 

• There is no evidence of any complaint to any treating provider regarding side effects 

from medications during the relevant period;

• There is no record of any specialized examination or treatment and no updated 

current imaging;

• There is no documentation that Plaintiff has pursued specialized treatment or that the 

cost is out of Plaintiff’s reach. 

(Id.) 

In her discussion, the ALJ also indicated that she gave little weight to the opinions of 

Plaintiff’s treating provider, Dr. Esquivel, who opined in November 2017 and May 2018 that 

Plaintiff was unable to work in any capacity due to her seizure disorder. (Tr. 22.) The ALJ 

found that these opinions were based solely on self-reporting by Plaintiff of her symptoms and 

not on any objective evaluation. (Tr. 22.) The ALJ also gave little weight to the findings of fact 

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made by State agency medical consultant Roberta Herman, M.D., who found Plaintiff could 

perform work at a medium exertional level (a higher level than that ultimately found by the 

ALJ), concluding that this opinion was also unsupported by the medical evidence. (Tr. 22.) 

Finally, the ALJ gave little weight to the testimony of Dr. Gustafson, Plaintiff’s husband, 

because his statements were “lay opinion based on casual observation, rather than objective 

medical examination and testing.” (Tr. 23.) 

At no point in the discussion of Plaintiff’s RFC or anywhere else in her opinion, did the 

ALJ discuss the medical evidence that informed the original finding of disability from 2008 and 

2009. As noted, the record submitted by the Commissioner does not contain any of this 

evidence. Nor was the ALJ’s opinion based on objective medical evidence from 2016 to 2018 

documenting a clear improvement of the symptoms associated with Plaintiff’s seizure disorder. 

Instead, the primary basis for the ALJ’s finding of medical improvement in this case was a 

perceived absence of objective medical evidence corroborating Plaintiff’s and her husband’s 

descriptions of her symptoms. Accordingly, nowhere in the ALJ’s opinion did she make a 

“comparison of prior and current medical evidence” demonstrating changes or improvement in 

the symptoms associated with Plaintiff’s seizure disorder. See 20 C.F.R. § 404.1594(b)(1). This 

was error.

Although there is not a Fifth Circuit case on point on this issue, multiple circuit courts of 

appeals have found reversal and remand to be required on facts similar to those presented here. 

In Veino v. Barnhart, 312 F.3d 578 (2d Cir. 2002), the SSA had terminated the claimant’s 

supplemental security income based on a finding of medical improvement. Upon further review 

and after a hearing, the ALJ concluded that at the time of the CPD, the claimant’s impairments

(anxiety disorder, paranoid personality, and alcoholism) were of a severity to satisfy Listing 

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12.04, but that there had been a clear improvement in the claimant’s condition. Veino, 312 F.3d 

at 583–84. The claimant appealed, arguing that the Commissioner had failed to prove that his 

medical condition had improved because the record contained no medical evidence as to his 

condition at the time of the original disability determination. Id. at 586. The Second Circuit

agreed and remanded the case for supplementation of the record and further consideration. Id. 

In doing so, the Court of Appeals faulted the ALJ for failing to “cite or include in the record the 

1982 medical evidence,” and instead only including and referencing a decision of a disability 

hearing officer summarizing that evidence. Id. at 587. The Court of Appeals reasoned that 

“without any of the 1982 medical evidence in the record before us, this Court cannot make a 

reasoned determination as to whether the DHO’s summary is accurate or adequate” and the ALJ 

had failed to conduct the comparison between prior and current medical evidence mandated by 

the regulations. Id. at 586–87. 

Similarly, the Eleventh Circuit Court of Appeals reversed and remanded a termination-ofbenefits decision, concluding that the ALJ, by focusing only on the current evidence of whether 

the claimant was disabled, had failed to undertake the required comparison with the medical 

evidence upon which the claimant was originally found to be disabled. Vaughn v. Heckler, 727 

F.2d 1040, 1043 (11th Cir. 1984). In doing so, the Eleventh Circuit emphasized the 

“presumptive validity” of the original disability decision and the requirement that there only be 

termination of benefits where “there is substantial evidence of actual improvement to the point of 

no disability.” Id. The Court of Appeals further explained that “[t]his presumption is necessary 

to avoid re-litigating the evidence presented in support of the initial administrative decision.” Id.

In a per curiam opinion, the Tenth Circuit also summarily reversed a decision terminating 

disability benefits where there had been no evaluation of the medical evidence for the original 

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finding of disability. Byron v. Heckler, 742 F.2d 1232, 1236 (10th Cir. 1984). The Tenth Circuit 

found that this “failure to apply the correct legal standard” was, in itself, “sufficient to command 

reversal.” Id. See also Threet v. Barnhart, 353 F.3d 1185, 1190 n.7 (10th Cir. 2003) (“the lack 

of evidence of medical treatment does not constitute objective medical evidence of 

improvement”). 

A number of district courts across the country have followed suit. See, e.g., Marcelin v. 

Berryhill, No. CV 16-14075, 2017 WL 3981155, at *6 (E.D. La. Aug. 15, 2017), report and 

recommendation adopted, No. CV 16-14075, 2017 WL 3971276 (E.D. La. Sept. 8, 2017) 

(remanding for further proceedings where ALJ failed to cite or discuss any of the medical 

evidence that supported initial finding of disability); Spratt v. Colvin, No. CIV-13-299-D, 2014 

WL 2153933, at *4 (W.D. Okla. May 20, 2014) (remanding for further proceedings where record 

lacked foundation upon which court could make “reasoned assessment of whether there is 

substantial evidence to support the Commissioner’s finding” that the claimant’s condition had 

improved) (internal quotation and citation omitted); Chambers v. Astrue, No. 6:11–CV–06198 

RE, 2012 WL 2836224, at *3 (D. Or. July 10, 2012) (remanding for further proceedings where 

record did not include any medical records of claimant’s condition at time of disability 

determination and finding insufficient ALJ’s “two sentence summary of the CPD medical 

evidence”); Lee v. Astrue, No. 2:10–cv–03162 KJN, 2012 WL 928741, at *6 (E.D. Cal. Mar. 19, 

2012) (remanding for further proceedings on medical improvement because the regulations do 

“not relieve the Commissioner or an ALJ from the requirement to conduct the comparison of 

medical severity and medical evidence otherwise called for in the regulations”); Osborn v. 

Barnhart, No. 03–M–2529, 2004 WL 2091480, at *2 (D. Colo. Aug. 6, 2004) (finding reversible 

legal error where ALJ did not state in his decision on medical improvement “how he compared 

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the symptoms, signs and laboratory findings, in [the claimant’s] earlier records with the later 

reports”).

Importantly, several of these cases have addressed the issue of whether a finding that a 

claimant no longer satisfies a listing can give rise to an inference of medical improvement. This 

is precisely what the ALJ appears to have done in this case. After finding that the medical 

evidence no longer satisfies Listing 11.02, the ALJ—without substantive discussion or reference 

to the original medical evidence—concluded that medical improvement had occurred. See Lee, 

2012 WL 928741, at *6 (concluding that regulations do “not direct a finding of ‘medical 

improvement’ where the claimant no longer meets a listing”); Osborn, 2004 WL 2091480, at * 2

(concluding that the ALJ “indulged in the presumption that the claimant’s failure to meet the 

listing requirement in the year 2000 was the result of some medical improvement in his 

impairments” and that this was error). The Commissioner argues here that because substantial 

evidence supports the ALJ’s finding that Plaintiff no longer satisfies the Listing, not discussing 

the evidence from 2008 and 2009 was “harmless at most.” (Commissioner Brief [#14] at 18.) 

The Court disagrees. To follow the Commissioner’s reasoning would permit an ALJ to evade 

the requirement of finding an actual improvement in the claimant’s condition and instead simply 

supplant his or her own new analysis of the listings for the previous one. Because the 

Commissioner bears the burden of demonstrating medical improvement,4this error was not 

harmless. 

In summary, the Court finds that the ALJ failed to apply the correct legal standard in 

evaluating medical improvement in this case. Ultimately, the ALJ made a finding of medical 

4

In contrast, the claimant bears the burden of proof at the first four steps of the sequential 

evaluation process, including at step three in proving that a condition satisfies a given listing. 

See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). 

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improvement based on “the lack of objective evidence” that Plaintiff’s seizure disorder satisfies 

Listing 11.02. In doing so, the ALJ improperly placed the burden of proof on Plaintiff to negate 

an inference of medical improvement, rather than requiring the Commissioner to carry the 

burden to demonstrate (through a comparison of prior and current medical evidence) that 

improvement indeed occurred. If the ALJ believed the record to be insufficient to evaluate the 

status of Plaintiff’s seizure disorder, the ALJ could have ordered further development of the 

record. See 20 C.F.R. § 404.1520b(b)(2)(i-iv) (providing that when the evidence in the record is 

incomplete or inconsistent, the ALJ has the discretion to further develop the record, including as 

possibilities of recontacting a treating source, requesting additional evidence, a consultative 

examination, and others). The ALJ chose not to do so. 

The governing regulations required the ALJ to make a comparison of the prior and 

current medical evidence, and she failed to undertake this analysis. A lack of evidence of 

medical treatment does not constitute objective medical evidence of improvement. Because the 

record is devoid of the original medical evidence underlying the original finding that Plaintiff 

was disabled, there cannot be substantial evidence of medical improvement in this case. 

V. Conclusion

Based on the foregoing, the Court finds that reversible error was committed during these 

proceedings and that substantial evidence does not support the Commissioner’s finding of 

medical improvement. This error warrants remand for further development of the record and 

additional proceedings. Accordingly, 

IT IS HEREBY ORDERED that the Commissioner’s decision finding that Plaintiff is 

not disabled is VACATED and this case be REMANDED for further fact-finding consistent 

with this opinion. 

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IT IS SO ORDERED.

SIGNED this 26th day of July, 2021.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

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