Under the second approach, at step 2, the ALJ would limit
his/her findings to the prior listed impairment, excluding
current impairments. If the ALJ found that the prior listed
disability had ceased, the ALJ would proceed to steps 3 thru 8.
At step 3, the regulations require the ALJ to determine whether
the plaintiff has experienced medical improvement of his/her
prior impairment(s). This inquiry excludes consideration of
current impairments and asks only if the original impairment is
less severe. See 20 C.F.R. § 404.1594(b)(1). If the answer to
that question is yes, the ALJ proceeds to step 4; If the answer
is no, the ALJ proceeds to step 5. See
20 C.F.R. § 404.1594(f)(3).
Under either step 4 or step 5, the ALJ would be required to
consider both prior and current impairments to determine whether
the plaintiff is disabled, pursuant to the Listings. See
20 C.F.R. § 404.1594(f)(4) citing 404.1594(b)(1)-(4);
404.1594(b)(4) citing (b)(5) citing § 404.1525 and 1526; see
also § 404.1594(f)(5) citing 1594(d); § 404.1594(f)(6). If
medical evidence shows that plaintiff's current impairments meet
or exceed those in the listings, then disability will be found to
continue and the analysis stops. 20 C.F.R. § 404.1594(b)(4), (5)
citing §§ 404.1525 and 404.1526.
The ALJ never reaches a determination of RFC in steps 4 and 5
unless he/she finds that plaintiff's impairments are not severe
enough to invoke the Listing's presumption of per se
disability. See 20 C.F.R. § 404.1525. This means that the ALJ
does not proceed to steps 6 and 7 unless the ALJ can show that
medical improvement of all plaintiff's prior and current
disabilities are related to his/her ability to work.
20 C.F.R. § 404.1594(f)(4), (5).
Thus, under either approach, the regulations require the ALJ to
determine not only whether the original listed impairment still
meets or exceeds the Listing, but also if current impairments
meet or exceed those in the Listings. The ALJ can move to steps
6, 7, and 8 to determine RFC according to vocational factors and
plaintiff's ability to perform past work — or any other work — in
the national economy, only if none of the Listings apply. See
20 C.F.R. § 404.1594(b)(5).
Although it is not the Court's function to review the record
de novo, the Court must determine that the ALJ has applied the
correct legal standard. The Court finds that the ALJ may not have
considered whether Plaintiff's current impairments, as of
February 23, 1990, met or exceeded any of the impairments listed
in the regulations. The ALJ appears to have missed this part of
the analysis, either at step 2 or at steps 4 and 5 of the
"continuing disability" evaluation. The Court cannot affirm the
Secretary's decision because it cannot determine whether the ALJ
considered the medical evidence related to Plaintiff's current
condition on February 23, 1990, and its relationship to Listing
1.03(A) and (B), or to any other relevant Listings.
Accordingly, the Court REVERSES the Secretary's decision, and
REMANDS this case to the ALJ for rehearing on the issue of
continuing disability. See Melkonyan v. Sullivan, ___ U.S. ___,
111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). The ALJ should consider
all the medical evidence available on February 23, 1990 as it
relates to Listing 1.03(A) and (B) or other relevant
Listings.*fn20 The Court directs the Clerk of the Court to
ENTER JUDGMENT in favor of the Plaintiff
[Doc. # 13, Part I] and against Defendant. [Doc. # 14, Part I].
Costs are awarded to the Plaintiff. Melkonyan, ___ U.S. ___,
111 S.Ct. 2157. Case TERMINATED.