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STEWART v. HECKLER

December 14, 1984

WILLIAM STEWART, Plaintiff, against MARGARET M. HECKLER, SECRETARY OF HEALTH & HUMAN SERVICES, Defendant


The opinion of the court was delivered by: SPRIZZO

SPRIZZO, D. J.:

Plaintiff William Stewart had been receiving Social Security disability insurance benefits since August of 1974. On February 8, 1983, he was notified by the Department of Health and Human Services ("HHS") that his benefits would be terminated as of April 4, 1983. That decision terminating plaintiff's benefits was upheld after a hearing before an administrative law judge held on July 15, 1983. Following a denial of review of that decision by the Appeals Council on October 6, 1983, plaintiff commenced the instant action in December of 1983, pursuant to Section 205(g) of the Social Security Act, as amended (the "Act"), 42 U.S.C. 405(g), seeking review of that final decision of the Secretary of Health and Human Services (the "Secretary") which terminated plaintiff's disability benefits. *fn1"

The parties cross-moved for judgment on the pleadings. By Order of this Court, dated February 16, 1984, this case was referred to Magistrate Buchwald for report and recommendation. On July 31, 1984, Magistrate Buchwald issued her Report and Recommendation, ("Mag. R.") in which she recommended that the Secretary's determination be reversed on several alternate grounds. There were no objections to the Magistrate's Report and Recommendation.

 By Order of this Court, dated October 3, 1984, *fn2" the Magistrate's Report and Recommendation was "adopted in its entirety," with further directions "that defendant [Secretary] forthwith take alladministrative steps to restore disability benefits to plaintiff," and "that defendant pay to plaintiff all retroactive benefits due, within 60 days of the date of this [O]rder."

 On October 15, 1984, the Secretary timely moved *fn3" for reargument remanding this case to the Secretary pursuant to Section 2 of the Social Security Disability Reform Act of 1984 (the "new law"), Pub.L. 98-460, which was enacted by Congress on September 19, 1984 and signed by the President on October 9, 1984. *fn4"

 DISCUSSION

 The first issue which must be addressed is whether the final action of the Secretary in Mr. Stewart's case constitutes a determination, "with respect to which a request for judicial review was pending on September 19, 1984," which should be remanded to the Secretary in accordance with Section 2 of the new law. *fn5" The Court concludes that it is not.

 The Magistrate recommended reversal of the Secretary's ruling terminating benefits, giving alternate grounds for the recommendation. The first two grounds are based upon the "medical improvement" standard enunciated by the Second Circuit, see, e.g., DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir. 1984), which must be applied in cases remanded to the Secretary under the new law. Thus, as the Magistrate stated:

 In sum, the record does not contain substantial

 evidence to permit the ALJ to conclude that plaintiff's

 condition has improved sufficiently to warrant a

 termination of his benefits. Nor does the record contain

 substantial evidence to reject the plaintiff's testimony

 or the expert opinions of his treating ...


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