The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge:
Plaintiff Edward Fleming seeks review of the decision of the Secretary of Health and Human Services (the Secretary) that plaintiff's disability and entitlement to disability insurance benefits ended in May 1980. The Secretary moves for a remand, and plaintiff cross-moves for a judgment on the pleadings.
Shortly after the original favorable decision the Secretary initiated an investigation into plaintiff's continuing disability. At the Secretary's request plaintiff was examined by a consulting orthopedic surgeon on May 1, 1980. (Tr. 229-230). On July 21, 1980 the Secretary terminated plaintiff's benefits as of the date of the consultative examination. The Secretary is also unable to produce much of the documentation relating to this decision.
At some point in 1987 the Secretary restored plaintiff's benefits on the basis of Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986), a class action in which the court held the "treating-physician rule" applicable.
The Secretary then attempted to make a new determination whether plaintiff's benefits had been properly terminated in May 1980 because of a "medical improvement." The Secretary decided that the benefits were properly terminated, and reaffirmed that decision upon reconsideration in January 1988. The Secretary assessed a $ 39,162.60 overpayment against plaintiff for benefits erroneously paid since 1980.
After a hearing, an administrative law judge affirmed the Secretary's decision, finding that plaintiff "currently" had lumbosacral strain with a possible herniated disc, alcoholism, and chronic/obstructive pulmonary asthma, but also that plaintiff's condition had improved since 1977 so that he could perform a variety of light or sedentary jobs. On this basis the administrative law judge found a medical improvement. He also affirmed the decision to deny plaintiff a statutory waiver of the overpayment.
On September 18, 1989 the Appeals Council reversed the administrative law judge's decision and remanded for a new hearing. The Appeals Council noted that the record did not contain "the favorable determination [awarding benefits] and most of the evidence upon which it was based." Because of this omission the Appeals Council found it impossible to make any "meaningful evaluation of medical improvement . . . upon the current record." (Tr. 30-31). The Appeals council directed the administrative law judge "to enlarge the record to include the initial favorable decision and the evidence upon which that determination was based." (Tr. 31). It also instructed him to determine whether plaintiff's alcoholism was diagnosed on or before May 1, 1980. Finally, it rejected the administrative law judge's finding that plaintiff was capable of a full range of sedentary and light work and directed the administrative law judge to obtain the opinion of a vocational expert.
The second hearing was held on December 12, 1989 before a different administrative law judge. At the beginning of the hearing the administrative law judge learned that the favorable decision was unavailable from the files. Plaintiff's attorney advised him that the Appeals Council had ordered him to obtain the decision. But the administrative law judge never did obtain that decision or the transcript of the evidence. He said that he would have to decide whether plaintiff "was disabled as of 1980." (Tr. 108).
On April 2, 1990 the administrative law judge affirmed the May 1980 termination of plaintiff's benefits. Though he still did not have the Secretary's initial favorable decision or the information upon which it was based, the administrative law judge concluded that there had been improvement in plaintiff's medical condition since May 1, 1980, that he was able to perform a full range of light work, and that he was not limited by alcoholism. The Appeals Council denied review, and this action followed.