## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 15 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DWAYNE L. SHEPHERD,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee. No. 98-5115

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-146-J)

Submitted on the briefs: Paul F. McTighe, Jr., Tulsa, Oklahoma, for Plaintif f-Appellant. Stephen C. Lewis, United States Attorney, Tina M. W addell, Chief Counsel, Region VI, Mark J. Kingsolver, Deputy Chief Counsel , Linda Green, Assistant Regional Counsel, SSA-Office of the General Counsel , Social Security Administration, Dallas, Texas, for Defendant-Appell ee.

Before PORFILIO , McKAY , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- In this case, we join the majority of other circuit s in concluding that the medical improvement standard, as created in 42 U.S. C. § 423(f) and defined by 20 C.F.R. § 404.1594(b)(1), applies in “closed period” cases in which a disability claimant is found to have been disabled for a finite period of time. 1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I Appellant is a disability claimant who filed an app lication for disability benefits in April 1993, which was approved for a cl osed period of disability spanning from December 8, 1991, through December 31 , 1992. A request for reconsideration was denied on July 19, 1993. Follo wing this denial, claimant requested a hearing before an ALJ. The ALJ agreed with the earlier determination that claimant was only eligible for b enefits for the closed period noted above because he was not disabled after Decem ber 31, 1992. The Appeals Council denied review, and claimant filed a complai nt in federal district court. The district court affirmed the commissioner’s deci sion.-3-

We review the commissioner’s decision only to determine whether substantial evidence supports that decision and whe ther the applicable legal standards were applied correctly. See Glenn v. Shalala , 21 F.3d 983, 984 (10th Cir. 1994). “We examine the record as a whole, inc luding whatever in the record fairly detracts from the weight of the [commissione r’s] decision and, on that basis, determine if the substantiality of the evidence test has been met.” Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800-01 (10th Cir. 1991). On appeal, claimant asserts that the district courterred in holding that the medical improvement standard does not apply to clos ed period cases; that the ALJ’s determination of his residual functional capa city was flawed; and that a proper hypothetical question was not asked of the v ocational expert. We address each claim in turn.
II
A After a claimant has been receiving disability bene fits for some period, the Social Security Administration is required to revie w his case periodically to determine whether there has been any medical improv ement in the claimant’s condition and whether that improvement affects his ability to work. See 20 C.F.R. § 404.1594. If the benefit recipient’s c ondition has improved, his-4-

eligibility to receive those benefits may terminate. See Jones v. Shalala , 10 F.3d 522, 524 (7th Cir. 1993). The following standard of review informs the decisi on to terminate benefits: A recipient of benefits . . . may be determined notto be entitled to such benefits on the basis of a finding that the physical or mental impairment on the basis of which such benefits are provided has ceased, does not exist, or is not disabling only if such a finding is supported by-- (1) substantial evidence which demonstrates that- - (A) there has been any medical improvement in the individual’s impairment or combination of impairmen ts (other than medical improvement which is not relate d to the individual’s ability to work), and (B) the individual is now able to engage in subst antial gainful activity . . . . 42 U.S.C. § 423(f). The Social Security Administration’s regulations define medical improvement as any decrease in the medical severity of [the] impai rment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled o r continued to be disabled. A determination that there has bee n a decrease in medical severity must be based on changes (impro vements) in the symptoms, signs and/or laboratory findings a ssociated with [the] impairment(s). 20 C.F.R. § 404.1594(b)(1). The medical improvemen t standard clearly applies when a disability award has become final and the co mmissioner brings an action2 “In a ‘closed period’ case, the decision maker dete rmines 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 288, 289 n.1 (11th Cir. 1987). In claimant’s case, the ALJ determined in a single document dated September 27, 1995, that claimant ha d been disabled from December 8, 1991 through December 31, 1992, but notthereafter. “Typically, both the disability decision and the cessation deci sion [in a closed period case] are rendered in the same document.” Id. -5- to terminate those benefits. See Glenn , 21 F.3d at 984-85. The issue here, however, is whether the medical improvement standar d applies in closed period cases, such as this one. 2
B We begin with a brief review of the statutory and r egulatory development of the medical improvement standard. After a perio d in which the Social Security Administration had abandoned the medical evidence s tandard in favor of a current evidence standard, Congress enacted the Social Secu rity Disability Benefits Reform Act of 1984 (“Reform Act”). See generally 93 A.L.R. Fed. 161 (1989). The Reform Act adopted the medical improvement stan dard, which now appears at 42 U.S.C. § 423(f), and defined it in this way: [T]he term ‘action relating to medical improvement’ means an action raising the issue of whether an individual w ho has had his entitlement to benefits . . . based on disabili ty terminated (or period of disability ended) should not have hadsuch entitlement terminated (or period of disability end ed) without consideration of whether there has been medical imp rovement in the condition of such individual . . . since the time of a prior determination that the individual was under a disab ility.3 Because remand was not necessary, the court in Camp examined the merits

of the appeal. Inexplicably, the court reversed th e secretary’s decision because it could not agree that a recent psychiatric report showed enough improvement in the claimant’s ability to function sufficient to ju stify the conclusion that disability had ceased. See id. at 722-23. -6- See 42 U.S.C. § 423 note (1984 Acts) (Pub. L. No. 98-4 60 Sec. 2(d)(6)). The issue of whether claimants involved in closed p eriod cases could have their cases remanded for consideration under the me dical improvement standard was not clearly resolved in the Reform Act, however , and the circuits that have considered the issue have disagreed. The Eighth Ci rcuit has held that a closed period case was not an “action relating to medical improvement” for purposes of the Reform Act, and read the remand provisions of t he Reform Act to apply only to cases “‘of a prior determination that the indivi dual was under a disability.’” Camp v. Heckler , 780 F.2d 721, 721-22 (8th Cir. 1986) (quoting 42 U.S.C. § 423 note (1984 Acts) (Pub. L. No. 98-460 Sec. 2(d)(6))) . “Prior determination,” the court held, “is more naturally read as referring t o a previous decision in favor of disability, followed by the claimant’s receipt of b enefits, further followed by a new proceeding resulting in cessation or terminatio n on the ground of medical improvement.” Id. at 722. 3 In a later case, the Eighth Circuit followed Camp in refusing to apply the medical improvement test to a closed period case. See Ness v. Sullivan , 904 F.2d 432, 435 n.4 (8th Cir. 1990). More rece ntly, however, the-7-

circuit applied the medical improvement standard to a closed period case without discussing or citing Camp . See Burress v. Apfel , 141 F.3d 875, 878-880 (8th Cir. 1998). Thus, the law in the Eighth Circuit regardi ng this issue seems presently unsettled. Other circuits have rejected the Eighth Circuit’s approach in Camp . The Eleventh Circuit, for example, explicitly criticized Camp for ignoring the legislative history of the Reform Act and “the broa d remedial policies underlying the Disability Amendments,” in which it discerned t hat Congress intended to reach closed period claimants. Pickett , 833 F.2d at 292 & 293 n.4. See also Jones v. Shalala , 10 F.3d 522, 523-24 (7th Cir. 1993) (applying med ical improvement standard in its review of closed period case); Chrupcala v. Heckler , 829 F.2d 1269, 1274 (3d Cir. 1987) (“Fairness wouldcertainly seem to require an adequate showing of medical improvement whenever anALJ determines that disability should be limited to a specified period.”); cf. Bowling v. Shalala , 36 F.3d 431, 435 (5th Cir. 1994) (applying traditional five-step sequential analysis to claimant’s evidence in a closed period case) . We are persuaded by these other circuits that applying the medical improvement stan dard to cases involving a4 We are aware of language in Brown v. Sullivan , 912 F.2d 1194,1196 (10th

Cir. 1990), indicating that the medical improvementstandard applies only in termination cases (“The medical improvement standar d applies only in termination cases, not in later applications for benefits.”). See also Richardson v. Bowen , 807 F.2d 444, 445-46 (5th Cir. 1987) (“The plain language of the [Reform Act] indicates that the Secretary must make a finding of medical improvement only in termination cases.”). Neither Brown nor Richardson , however, involved a closed period of disability. In Brown , the claimant had filed a new application for benefits after previous benef its were terminated. Similarly, in Richardson , the claimant’s closed period case had already bec ome final, and the Secretary had refused to reopen it after the cl aimant had filed a new application for benefits. Because the issue of the applicability of the medical improvement standard to closed period cases was notbefore the court in either of these cases, we are not bound by language limiting the medical improvement standard to termination cases. -8- closed period of disability is consistent with the language and legislative purpose in the Reform Act. 4
C In the case before us, the magistrate judge whose o rder the district court adopted assumed that the medical improvement standa rd did not apply in closed period cases. Furthermore, the magistrate found th at even if the medical improvement did apply, the ALJ’s findings support the conclusion that claimant experienced medical improvement and was able to wor k after that improvement. Having concluded that the medical improvement stand ard does apply, we must now determine whether the ALJ, who referred to the standard in his decision, applied it correctly in claimant’s case. As explai ned below, we conclude that although the Administrative Law Judge (“ALJ”) at le ast implicitly applied the5 There are additional steps involved in disability reviews. See 20 C.F.R.

§ 404.1594(f). We are concerned here, however, onl y with the medical improvement portion of that review. -9- proper standard in awarding appellant-claimant Dway ne Shepherd only a closed period of disability benefits for impairments susta ined as the result of a motorcycle accident, the record lacks substantial e vidence to support the ALJ’s conclusion that claimant’s disability ceased by Dec ember 31, 1992. Instead, the record demonstrates that claimant had achieved medi cal improvement and could perform substantial work by July 7, 1993. In order to determine whether disability continues or ends, the commissioner must determine “if there has been any medical improvement in [a claimant’s] impairment(s) and, if so, whether this medical improvement is related to [the claimant’s] ability to work.” 20 C.F.R. § 404.1594(a). 5 The regulations contain definitions and examples of when medical improvement is related to the ability to do work, and when it is not so related. See id. at § 404.1594(b)(2) and (b)(3). To apply the medical improvement test, the ALJ mustfirst compare the medical severity of the current impairment(s) to th e severity of the impairment(s) which was present at the time of the most recent favorable medical decision finding the claimant disabled. See id. at § 404.1594(b)(7). Then, in order to determine that medical improvement is related to ab ility to work, the ALJ must-10-

reassess a claimant’s residual functional capacity (RFC) based on the current severity of the impairment(s) which was present at claimant’s last favorable medical decision. See id. at § 404.1594(c)(2). The ALJ must then compare th e new RFC with the RFC before the putative medical improvements. The ALJ may find medical improvement related to an ability to d o work only if an increase in the current RFC is based on objective medical evidence. See id. In this case, the ALJ was asked to review a determi nation, made at an earlier stage in the administrative process, that c laimant was only disabled from December 8, 1991, through December 31, 1992. The A LJ agreed that claimant was disabled by December 8, 1991, because of a nonu nion of a fracture of the tibia, an impairment meeting the listing at 20 C.F. R., Pt. 404, Subpt P., App. 1 § 1.11. The ALJ also found, however, that claimantwas no longer disabled after December 31, 1992. As support for this conclusion, the ALJ cited the opinions of consultative examiners who found limitation primari ly in the lower extremities and none of consequence in the upper extremities. See Appellant’s App. at 17. These examinations, however, occurred in 1993 and 1 994. The ALJ points to no evidence tied to December 31, 1992, to support his conclusion that claimant’s disability ended as of t hat date. There is no evidence in the record of medical improvement of the fractured tibia, substantiated by changes in signs, symptoms, or laboratory findings, which t ook place by December 31,-11-

1992, sufficient to support a conclusion that disab ility had ceased. Nor is there an evidentiary basis upon which the ALJ could have compared the severity of claimant’s leg injury on December 31, 1992, with th e same condition as it existed on December 8, 1991. Similarly, no evidence allows a comparison of claimant’s RFC on those two dates. Although the ALJ correctlyrecognized that the medical improvement test applied in this closed period case , insufficient evidence supports his conclusion that such improvement had o ccurred by December 31,
1992. The same cannot be said, however, of claimant’s con dition in July 1993. By that date, a consultative examination revealed n ormal upper extremities except for slight stiffness in the right elbow, normal ran ge of motion of the joints of the lower extremities except for the right ankle, norma l peripheral pulses, no ankle swelling, joints not tender to palpitation, full ra nge of motion of the knees (albeit accompanied by crackling noises), some rotation of the knees, and evident deformities of the legs from the fractured tibias but no tenderness. See Appellant’s App. Vol. II at 243-44. Muscle strength in the hands, forearms, arms, and legs were normal and equal bilaterally. See id. at 244. Claimant could walk at a normal pace and with good stability, although he required a leg brace on his right leg. See id. Claimant expressed an interest in retraining to b ecome a motorcycle mechanic, and the consultative physician believed he could be-12-

motivated to seek alternative occupation and training. See id. Furthermore, Dr. Luther Woodcock had concluded that by July 1993, cl aimant had the residual functional capacity to perform sedentary work becau se he could occasionally lift ten pounds, frequently lift five to ten pounds, sta nd at least two hours in an eighthour workday, sit about six hours in an eight-hour workday and had unlimited ability to push and/or pull. See id. at 95-96; see also 20 C.F.R. § 404.1567(a) (describing the requirements for sedentary work). Thus, there was a period between December 1992 and July 1993 during which claimant may have been eligible for benefits. Because the record is unclear, however, regarding what portion of this pe riod saw claimant incarcerated and thus ineligible for benefits, we must remand to the district court for further development of this factual issue.
III In his second issue on appeal, claimant takes issue with the ALJ’s conclusion that he can do some light work and all s edentary work. Claimant first takes exception to the ALJ’s credibility determinat ion. Claimant’s argument to the district court was that the ALJ’s credibility f indings fail to comply with the mandate of Kepler v. Chater , 68 F.3d 387 (10th Cir. 1995), in that they do not link claimant’s credibility with specific evidence. We disagree.6 Claimant’s arguments regarding the reason he failed to obtain retraining

while he had previously been receiving benefits and his inability to pursue medical attention because of his poverty will not b e addressed on appeal because those arguments were not made to the district court. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). -13- The ALJ thoroughly explained his credibility determ ination, citing inconsistencies between claimant’s testimony regard ing his inability to stand because of pain and reports given to the consultati ve examiners, evidence that he had been doing some mechanic work and odd jobs arou nd the house, the fact that he takes only aspirin and had not seen a doctor sin ce March 1993, and the fact that his physical therapy sessions were canceled be cause he failed to show up for them. This identification of specific evidence complies with the requirements of Kepler

. 6
IV Finally, claimant contends that the ALJ failed to a sk the proper hypothetical of the vocational expert. The ALJ ask ed the vocational expert to consider a person “of the same age, education, sex, background, training and experience of this claimant, and I first want you t o assume that the only limitation is no prolonged time on the feet or prolonged use o f the feet or legs.” Appellant’s App. Vol. II at 61. Claimant argues that the ALJ s hould also have included his impairments with walking, sitting, stamina, severe pain, cognitive skills, concentration, memory, and the need to rest during the day.-14-

The record does contain evidence that claimant woul d have problems walking long distances. We conclude, however, thatthe hypothetical question described above included a walking dimension and th at the ALJ adequately explained his refusal to credit claimant’s complain ts of severe pain. The other alleged impairments find no evidence in the record other than claimant’s testimony which, by itself, is insufficient to esta blish the existence of an impairment. See Musgrave v. Sullivan , 966 F.2d 1371, 1376 (10th Cir. 1992). The ALJ is only required to ask hypotheticals encompassing impairments that find support in the record. See Jordan v. Heckler , 835 F.2d 1314, 1317 (10th Cir. 1987).
V As noted above, the judgment is AFFIRMED in part and REVERSED in part, and the case is REMANDED for further proceedings.