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RAFFA v. CALIFANO

May 12, 1978

Jorge RAFFA, Plaintiff,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant


Vincent L. Broderick, U.S.D.J..


The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, U.S.D.J.

 Plaintiff brought this action under Sections 205(g) and 1631(c)(3) of the Social Security Act as amended (hereafter "the Act"), 42 U.S.C. Sections 405(g) and 1383(c)(3) (1974), seeking review of a final determination of the Secretary of Health, Education and Welfare ("H.E.W."). The Secretary predicated a termination of plaintiff's Supplemental Security Income ("SSI") benefits upon findings (1) that plaintiff had income in excess of the statutory limitation, and (2) that plaintiff was no longer disabled, since his work activity and the amount of his earnings demonstrated that he could once more engage in substantial gainful activity.

 Defendant has moved for judgment on the pleadings pursuant to Rule 12(c), F.R.C.P., on the ground that the decision of the Secretary to terminate plaintiff's benefits is supported by substantial evidence. For the reasons hereafter stated, defendant's motion is denied.

 Plaintiff began receiving benefits at the inception of the SSI program in January 1974. Plaintiff had previously been eligible for benefits under a state welfare program which was superseded by the federal program: plaintiff's state eligibility had been based upon a partial disability stemming from two broken vertebrae.

 On July 21, 1975, plaintiff was notified that he was no longer eligible for SSI benefits because his income was in excess of statutory limits. Plaintiff promptly filed a request for reconsideration of this decision. On December 21, 1975, he was notified that the initial determination had been affirmed, and his last check would be received January 1, 1976.

 The following day plaintiff requested a hearing before an administrative law judge of the Bureau of Hearings and Appeals of H.E.W. A hearing was held on February 26, 1976 at which plaintiff represented himself. In a decision dated March 3, 1976, the administrative law judge found the plaintiff ineligible for benefits.

 Plaintiff appealed administratively, contesting the determination of excess income and cessation of disability. The Appeals Council of the Bureau of Hearings and Appeals notified plaintiff on August 30, 1976 that the decision of the Administrative Law Judge had been affirmed after consideration of "all the evidence in your case, the applicable law and regulations, the reasoning and the evaluation of the facts in the decision, and your reasons for believing that your claim should be allowed." Plaintiff then sought review in this court.

 I must determine on the record as a whole whether the finding of the Secretary that plaintiff is no longer eligible for SSI benefits is supported by substantial evidence.

 Since this determination is called for on a motion for judgment on the pleadings, I shall not look beyond the pleadings, and the motion should be denied if the finding of fact is not supported by substantial evidence, *fn1" 42 U.S.C. § 405(g); Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975), or if there is an issue of material fact raised by the pleadings as to whether or not the Secretary's finding is supported by substantial evidence. See E. C. Robinson Lumber Co. v. Hughes, 355 F. Supp. 1363, 1370 (E.D. Mo. 1972); Franklin Nat. Bank v. Krakow, 295 F. Supp. 910, 915 (D.D.C. 1969); U.S. v. Chelsea Towers, Inc., 295 F. Supp. 1242, 1246 (D.N.J. 1967), and cases cited therein.

 1. The excess income claim.

 Defendant states that plaintiff is ineligible for SSI benefits as a matter of law because he allegedly earned more than the statutory limitations for the years 1974, 1975 and 1976 set forth in Sections 1611 and 1617 of the Act, 42 U.S.C. § 1382(a)(1)(A) and 1382(f) (1974). While plaintiff may have earned more than the statutory limitation in 1974, *fn2" defendant concedes that plaintiff's 1975 income did not exceed the statutory limit. *fn3"

 Moreover, since plaintiff's benefits were discontinued as of January 1, 1976, "the benefits in issue here are 1976 benefits . . . ." *fn4" Defendant concedes that plaintiff's 1976 income did not exceed the statutory limit for 1976.

 
. . . . There is no record of either 1976 earned or unearned income that might, if in excess of $2,013.60, make plaintiff ineligible for Title XVI disability benefits. ...

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