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August 7, 1984

ARTHUR IRVIN, Plaintiff, against MARGARET HECKLER, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: WARD

WARD, District Judge.

This action is brought pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act (the "Act") as amended, 42 U.S.C. §§ 405(g), 1383(c)(3), for judicial review of a final decision by the Secretary of Health and Human Services (the "Secretary"), which terminated plaintiff's supplemental security income based on disability ("SSI") (hereinafter "disability benefits"). The Secretary held that, as of February 1983, plaintiff no longer suffered from a "disability" within the meaning of the Act. Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. For the reasons hereinafter stated, plaintiff's motion is granted, and the Secretary's decision terminating plaintiff's disability benefits is reversed. The Secretary is directed to resume payment of disability benefits to plaintiff and to pay all benefits due plaintiff since their termination in April 1983.


 Plaintiff is currently fifty-two years old. He has completed the tenth grade. According to the administrative record, plaintiff has not worked since 1971. He was last employed as a porter in a barber shop. Prior to that time, he worked as a salad maker in various restaurants.

 In November 1978, plaintiff was determined to be eligible for disability benefits because he was suffering from: arthritis in his legs, emphysema, high blood pressure, alcoholism, chronic bronchitis, periodic renal failure, removal of his left kidney, and fixed pronation of the left forearm. Plaintiff's alcoholism is currently in remission. In addition to these ailments, plaintiff now appears to suffer from: muscle spasms of the spine, osteoarthritis, cataracts, chronic skin rash, depression and anxiety, and dependency on a back brace. He is under continuous treatment at New York Medical College and its affiliate, Metropolitan Hospital Center.

 Plaintiff's benefits were discontinued effective April 1983 based on a determination that plaintiff had ceased to be disabled within the meaning of the Act as of February 1983. Following a request by plaintiff for reconsideration, this determination was affirmed. Plaintiff then filed a timely request for an administrative hearing. Such a hearing was held on July 28, 1983, before Administrative Law Judge Emanuel Tannenbaum (the "ALJ"). *fn1" In a decision dated September 2, 1983, the ALJ found that plaintiff was no longer under a "disability" as defined by the Act and that he was not entitled to continued disability benefits. This determination became the final decision of the Secretary on November 28, 1983, when it was adopted by the Appeals Council. *fn2"



 The legal principles that govern the Court's decision on the instant motion are well settled. "Disability" is defined in the Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). *fn3" the mere presence of an impairment is not disabling within the meaning of the Act. Rather, a person may be determined to be under a disability only if his or her impairment is of such severity that the claimant is not only unable to do his or her previous work, but cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

 The initial burden of proving disability is on the claimant.42 U.S.C. § 423(d)(5), 20 C.F.R. § 404.1520; see Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984); Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984); Rivera v. Schweiker, 717, F.2d 719, 722 (2d Cir. 1983); Schauer v. Schweiker, 675 F.2d 55 (2d Cir. 1982); Carter v. Schweiker, 649 F.2d 937, 940 (2d Cir. 1981); Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir. 1972). The claimant satisfies this burden by making out a prima facie case, that is, by showing that his or her impairment prevents return to his or her prior employment, Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir. 1978). The burden then shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work that exists in the national economy that the claimant could perform. Heckler v. Campbell, 461 U.S. 458, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983); Bluvband v. Heckler, supra, 730 F.2d at 891; Ferraris v. Heckler, supra, 728 F.2d at 584; Rivera v. Schweiker, supra, 717 F.2d at 722-23; Parker v. Harris, supra, 626 F.2d at 231; Bastien v. Califano, supra, 572 F.2d at 912-13.

 The Secretary may terminate the payment of disability benefits if it is determined that plaintiff's disability has ceased. 42 U.S.C. § 425(a). See, e.g., De Leon v. Secretary of HHS, 734 F.2d 930, slip op. at 3737 (2d Cir. 1984). Under the medical improvement standard recently adopted by the Second Circuit, "the Secretary may terminate benefits to a person previously adjudged to be disabled only upon substantial evidence that the individual's condition has improved to the point that he or she is no longer disabled, or that the initial finding of disability was erroneous." Id. See also Rush v. Secretary of HHS, 738 F.2d 909 (8th Cir. 1984); Parente v. Heckler, 735 F.2d 743, slip op. at 4095 (2d Cir. 1984); Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir. 1983); Simpson v. Schweiker, 691 F.2d 966 (11th Cir. 1982); Cassiday v. Schweiker, 663 F.2d 745 (7th Cir. 1981); Hayes v. Secretary of HEW, 656 F.2d 204 (6th Cir. 1981); Finnegan v. Matthews, 641 F.2d 1340 (9th Cir. 1981); Miranda v. Secretary of HEW, 514 F.2d 996 (1st Cir. 1975); Rivas v. Weinberger, 475 F.2d 255 (5th Cir. 1973); Mersel v. Heckler, 577 F. Supp. 1400 (S.D.N.Y. 1984); Romero v. Heckler, No. 83-6429, slip op. (S.D.N.Y. May 23, 1984); Velazquez v. Heckler, No. 83-8018, slip op. (S.D.N.Y. June 19, 1984).

 In applying the medical improvement standard, the Secretary must compare the condition of a benefits recipient at the time of review with his or her condition at the time disability benefits were initially granted. See, e.g., De Leon v. Heckler, supra, slip op. at 3737. The claimant, having once established that a particular condition is disabling, is entitled to a presumption that the condition remains disabling. Id. at 3738. As the Third Circuit explained:

 Basic principles of fairness as well as the need to provide both the appearance and fact of consistency in the administrative process lead us to conclude that in a termination proceeding, once the claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, the claimant is entitled to the benefit of a presumption that his or her condition remains disabling.Such a presumption will help avoid the disconcerting picture presented by the triple administrative flip-flop in this case.

 Kuzmin v. Schweiker, supra, 714 F.2d at 1237 quoted in De Leon v. Heckler, supra, slip op. at 3738. See also Parente v. Heckler, supra, slip op. at 4096-97, 4099; ...

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