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DIXON v. HECKLER

January 2, 1985

David DIXON, et al., Plaintiffs,
v.
Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant.



The opinion of the court was delivered by: LASKER

ENDORSEMENT

LASKER, District Judge.

 Plaintiff David Dixon's motion for judgment on the pleadings and defendant's cross-motion to remand for further administrative proceedings were referred to Honorable Harold J. Raby, United States Magistrate, for report and recommendation.

 Under date of December 12, 1984 Magistrate Raby submitted his report recommending that defendant's cross-motion to remand be denied and plaintiff's motion for judgment on the pleadings be granted subject to conditions.

 Neither party has filed written objection and we have been advised by the Assistant United State Attorney in charge of the case that the government does not object to the Magristrate's recommendations. Since we find the Magristrate's recommendation to be sound on the facts and law we affirm it. Defendant's motion to remand is denied. Plaintiff's motion for judgment on the pleadings is granted reversing the prior adverse decision by the Secretary which declared plaintiff ineligible for receipt of social security disability payments.

 The case is remanded to the Secretary for the limited purpose of computing the amount of benefits payable to the plaintiff pursuant to his application dated August 5, 1981 and for the payment of such benefits.

 It is so ordered.

 REPORT AND RECOMMENDATION

 December 12, 1984

 HAROLD J. RABY, United State Magristrate.

 Pursuant to Title 28 U.S.Code § 636(b)(1)(B), you have referred to me, as a Magristrate of this Court, for report and recommendation, (1) a motion by the first-named plaintiff in this class action, David Dixon, filed October 9, 1984 (Court Document #47), seeking judgment on the pleadings reversing outright a prior adverse decision against the plaintiff by the defendant, Secretary of the Department of Health and Human Services (hereinafter "Secretary") and declaring plaintiff eligible for the receipt of such monthly Social Security benefits as the plaintff would be entitled to receive based upon as assumed favorable determination of his August 5, 1981 application for Social Security disability benefits; and (2) a cross-motion by the defendant Secretary, filed by the United States Attorney on October 19, 1984 (Court Document #49), seeking an order remanding the case, pursuant to Title 42 U.S.Code § 405(g) for further administrative action which, if pursued, might well, according to the United States Attorney, result in a final administrative decision favorable to the plaintiff Dixon, thereby obviating the need for further action by this Court as to his case.

 Both motions must be viewed in the light of the prior history and background of this litigation, which may be summarized as follows.

 The plaintiff Dixon, having commenced this action on behalf of himself and others "similarly situated," thereafter, by appropriate motion, sought class action certification as well as a preliminary injunction enjoining enforcement by the Secretary of a so-called "severity regulation" claimed by plaintiff to be invalid.

 In a published opinion dated June 22, 1984 granting that relief, reported as Dixon v. Heckler, 589 F. Supp. 1494 (S.D.N.Y. 1984), you described and summarized the prior administrative proceedings, insofar ...


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