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December 14, 1984


The opinion of the court was delivered by: SPRIZZO


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"


 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 physicians

 [regarding plaintiff's claims of continued pain and

 severe disability]. Accordingly, we recommend that the

 Secretary's decision terminating plaintiff's benefits be


 Mag.R. at 7-8.

 However, in her report, the Magistrate gave another basis for reversing the Secretary's decision, entirely separate and distinct from the "medical improvement" standards to which the remand provisions of the new law are designed to apply. The Magistrate stated:

 Since there is not substantial evidence to support the

 proposition that plaintiff has the capacity to perform

 light work, the most plaintiff can be considered capable

 of is sedentary work; the applicable regulation would be

 Rule 201.14. This rule dictates that a person capable of

 sedentary work, closely approaching advanced age with

 previous skilled or semi-skilled work experience and a

 high school education or more should be found disabled.

 20 C.F.R.ยง 404 Subpart P, Appendix 2. This analysis

 would find plaintiff disabled despite his possible

 ability to perform sedentary work, and would provide an

 independent basis for reversing the Secretary's


 Mag.R. at 9 [Emphasis added].

 The Secretary never took an appeal from any portion of this Report and Recommendation, including the "light work/sedentary work" analysis referred to above and does not now question the validity of that aspect of the Magistrate's Report.

 Since the Court Order adopting the Magistrate's Report approved this ground as a separate and independent basis for directing the restoration of benefits, it would not be a rational construction of the new law to require a remand in a case where it is clear that benefits must be restored regardless of what findings may or may not be made on remand with respect to plaintiff's medical improvement. Certainly nothing in the legislative history of the amendment suggests that remand is required even in cases where any decision with respect to medical improvement will have no impact on plaintiff's right to receive benefits. Indeed, that legislative history, if anything, suggests quite the contrary. *fn6"

 Since the Court has concluded that no remand is required for the reasons given there is no need to reach the issue of whether in fact this case was pending within the meaning of the new law.

 The Secretary's request for reargument is denied.


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