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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-41432
_____________________
JAMES R. WATERS,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
January 8, 2002
Before JOLLY and PARKER, Circuit Judges, and SPARKS,1 District
Judge.
E. GRADY JOLLY, Circuit Judge:
Waters sought disability benefits from the Social Security
Administration based on a broken ankle and other related injuries.
An Administrative Law Judge ("ALJ") awarded Waters disability for
a closed period - that is, between November 27, 1993 and November
5, 1996. In determining the cessation date for the period, the ALJ
principally placed the burden on Waters to show that his disability
continued past this date. Following the lead of a number of our
1District Judge of the Western District of Texas, sitting by
designation.

sister circuits, we adopt the "medical improvement" standard in
these closed period cases. This standard places the initial burden
on the government to show that the claimant's disability has ended
as of the cessation date. We thus reverse and remand to the
district court with instruction to remand to the Social Security
Administration for further proceedings not inconsistent with this
opinion.
I
On March 1, 1995, Waters applied for both disability benefits
and supplemental security income based on an ankle injury he
suffered when he slipped on some ice while using a sledge hammer.
The Commissioner of the Social Security Administration denied
Waters benefits. Waters requested a hearing before an
administrative law judge. At the hearing, the ALJ decided to send
Waters to a doctor for a conclusive evaluation. Waters agreed to
see the doctor. The next month, Dr. James Harris examined Waters
on behalf of the ALJ. Dr. Harris reported that Waters' broken
ankle was healing nicely, and that Waters "has many signs and
symptoms that appear to be nonphysiologic." Based on this report,
the ALJ issued a partially favorable ruling -- effectively finding
that Waters had no continuing disability but that he did have a
disability for the closed period between the time of his ankle
injury on November 27, 1993 and his visit to Dr. Harris on November
5, 1996. The Appeals Council denied Waters' request for review.
2

Waters then acquired representation and filed a complaint in the
district court. The complaint alleged, inter alia, that the ALJ
had applied the wrong legal standard to evaluate the cessation date
for his closed period of benefits. This is the only issue we
address in this appeal.
The district court, adopting the magistrate judge's
recommendation, affirmed the Commissioner. Waters now appeals.
II
In Social Security disability cases, 42 U.S.C. § 405(g)
governs the standard of review. Frith v. Celebrezze, 333 F.2d 557,
560 (5th Cir. 1964). In the Fifth Circuit, appellate review is
limited to (1) whether the Commissioner applied the proper legal
standard; and (2) whether the Commissioner's decision is supported
by substantial evidence. See Estate of Morris v. Shalala, 207 F.3d
744, 745 (5th Cir. 2000)(citations omitted). In this case, the ALJ
used a five-step sequential analysis to determine the beginning and
the end date for the "closed period" of Waters' disability. Courts
and the Social Security Administration typically use this type of
analysis to decide whether -- as a threshold matter -- a person is
disabled. The five-step analysis is:
First, the claimant must not be presently
working. Second, a claimant must establish
that he has an impairment or combination of
impairments which significantly limit [his]
physical or mental ability to do basic work
activities. Third, to secure a finding of
disability without consideration of age,
education, and work experience, a claimant
3

must establish that his impairment meets or
equals an impairment in the appendix to the
regulations. Fourth, a claimant must
establish that his impairment prevents him
from doing past relevant work. Finally, the
burden shifts to the Secretary to establish
that the claimant can perform the relevant
work. If the Secretary meets this burden, the
claimant must then prove that he cannot in
fact perform the work suggested.
Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991)(internal
citations and quotation marks omitted). It is important to note
that the claimant bears the burden of proof with respect to the
first four steps of the analysis, with the burden shifting to the
Commissioner for the final step. Jones v. Bowen, 829 F.2d 524, 526
(5th Cir. 1987). In the instant case, the ALJ terminated the
analysis at step four, finding that "subsequent to November 5,
1996, the claimant retains the residual functional capacity to
perform the exertional demands of light work, or work which
requires maximum lifting of twenty pounds and frequent lifting of
ten pounds." Basically the ALJ found that Waters had failed to
prove that his ankle injury prevented him from doing past relevant
work after November 5, 1996, the date of his visit with Dr. Harris.
Accordingly, he was not disabled after this date.
Waters argues that the government should have to prove
"medical improvement" when defining the cessation date for a closed
period of benefits. The primary difference between the standard
employed by the ALJ and the "medical improvement" standard
advocated by Waters is the allocation of the burden of proof.
4

Under the medical improvement standard, the government must, in all
relevant respects, prove that the person is no longer disabled.
See 42 U.S.C. § 423(f); Griego v. Sullivan, 940 F.2d 942, 943-44
(5th Cir. 1991). In contrast, as noted above, the ALJ in this case
placed the burden on Waters to show that his ankle injury prevented
him from doing past relevant work after November 5, 1997 (to prove
step four in the five-step disability threshold analysis).
A number of the circuits have adopted the "medical
improvement" standard in cases similar to the case before us. See
Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir. 1999) ("We are
persuaded by these other circuits that applying the medical
improvement standard to cases involving a closed period of
disability is consistent with the language and legislative purpose
in the Reform Act."); Jones v. Shalala, 10 F.3d 522 (7th Cir. 1993)
(applying the medical improvement standard in the review of closed
period case); Chrupcala v. Heckler, 829 F.2d 1269, 1274 (3d Cir.
1987) ("Fairness would certainly seem to require an adequate
showing of medical improvement whenever an ALJ determines that
disability should be limited to a specified period."); Pickett v.
Bowen, 833 F.2d 288, 292 (11th Cir. 1987) ("Consequently, we
discern from the broad remedial policies underlying the Disability
Amendments that Congress intended to reach `closed period'
claimants.").2
2In fact, at oral argument the government conceded that this
was the appropriate standard for finding the cessation date in
5

The Fifth Circuit, however, has stated in dicta that the
medical improvement standard applies only in termination cases -
that is, where the government seeks to halt the ongoing payment of
benefits. See Richardson v. Bowen, 807 F.2d 444, 445 (5th Cir.
1987). In Richardson, at a disability review hearing, an ALJ
terminated the claimant's disability payments. Rather than timely
appealing this ruling, the claimant filed a new application asking
the Commissioner to reopen his case. This request was denied. Id.
at 445. The Richardson court was thus confronted with deciding the
conditions under which the Commissioner could refuse to reopen a
case; the issue of the applicability of the medical improvement
standard to closed period cases was not squarely before the court.
See Shepherd, 184 F.3d at 1200 n.4. Thus, any statements in
Richardson regarding the limitations on the use of the medical
improvement standard are not binding with respect to the issue in
this case.3
Approaching the issue as one of first impression, we think
that our sister circuits' approach is more persuasive than that
suggested by the Richardson dicta. Through the Reform Amendments,
closed period cases.
3In Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994), a panel
of the Fifth Circuit applied, without any analysis, the five-step
sequential analysis for determining disability in a closed period
case. Because the Bowling court was not confronted with the issue
of what was the appropriate standard of review in closed period
cases (there is no discussion of this issue), the case does not
stand for the proposition that the medical improvement standard is
inappropriate.
6

Congress explicitly required a showing of medical improvement
before the Commissioner could halt the payment of benefits in a
termination case. See 42 U.S.C. § 423(f)(1); Griego v. Sullivan,
940 F.2d at 943-44. In the typical disability case, a claimant's
application for benefits is decided while he is under a continuing
disability. Once the application is granted, payments continue in
accord with that decision. Termination of the benefits then
involves a subsequent hearing -- a termination case -- in which the
Commissioner reviews (and decides whether to terminate) the
continued payment of benefits. In contrast, in a closed period
case, "the decision-maker determines 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 at 289 n.1. Thus, in closed period cases, the ALJ
engages in the same decision-making process as in termination
cases, that is, deciding whether (or, more aptly, when) the
payments of benefits should be terminated. Accordingly, we follow
the Tenth, Seventh, Eleventh, and Third Circuits in holding that
the medical improvement standard applies to the cessation date in
closed period cases.4 The district court's judgment is reversed
4Because we are reversing the district court and remanding for
further consideration, the government's motion for remand is denied
on grounds of mootness. Furthermore - also essentially for
reasons of mootness -- we see no need to address Waters' due
process claims that he was effectively denied counsel and that he
signed a constitutionally impermissible waiver of his right to
examine post-hearing medical evidence. He is now represented by
counsel and, in the light of this appeal that remands for a
7

and the case is remanded with instruction to remand to the Social
Security Administration for further proceedings not inconsistent
with this opinion.
REVERSED AND REMANDED

rehearing, there is no indication that he has suffered any injury
as a result of these alleged constitutional violations. To further
assure this fact, we hold that any waivers made prior to this
appeal are not binding in any proceeding conducted in accordance
with this remand.
8