for surgery to relieve nerve root compression. (Tr. 63, 223).
It is unclear what other information the Secretary had when he made his initial finding of disability. Plaintiff suggests that the finding may have been based on a combination of his back condition and his alcoholism.
In support of the Secretary's determination that plaintiff's medical condition improved as of May 1, 1980, the Secretary relies primarily on the consultative examination performed by Dr. Justus Kaufman on that date. Dr. Kaufman concluded that plaintiff had a low back derangement with a left sciatica with a possibility of disc involvement. He stated that "as a result of these conditions the patient is partially disabled. He should be able to sit and stand for 4 hours in an 8 hour working day and should be able to walk for a [sic] least 1 hour.
This report does not show that there was a medical improvement, that is, a "decrease in the medical severity of [plaintiff's] impairment(s) which [were] present" in April 1979. See 20 C.F.R. § 404.1594(b)(1).
The Secretary also urges that the record does not provide a basis for reversing the Secretary's decision to terminate benefits, arguing that even though several doctors, including the administrative consultant Dr. Kaufman, ultimately concluded that plaintiff was in fact disabled, those opinions are unpersuasive because they were rendered six to eight years after the date on which the Secretary terminated plaintiff's benefits.
But the relevant inquiry is not whether plaintiff could meet the disability requirements as of May 1, 1980. Rather, the issue is whether plaintiff's condition had improved by that date to justify the termination of benefits for which plaintiff had previously qualified. Because the record does not support a finding that plaintiff's medical condition improved, the decision of the administrative law judge is reversed.
The Secretary acknowledges that "the record may be ambiguous" and moves for a remand pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (as amended by section 307 of the Social Security Disability Amendments of 1980, Pub. L. No. 96-265, 94 Stat. 458 (1980)), which provides in pertinent part that:
the Court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon showing that there is new evidence, which is material and that there is good cause for failure to incorporate such evidence into the record in prior proceedings.
Citing to this provision the Secretary requests what the Supreme Court has called a "sentence six remand." Melkonyan v. Sullivan, 115 L. Ed. 2d 78, U.S. , 111 S. Ct. 2157, 2163-64 (1991).
On remand the Secretary intends to "clarify how plaintiff's medical condition has improved" and "obtain medical expert testimony if necessary." (Defendant's Brief at 7). But the Secretary has not come forward with any new evidence to present at a third administrative hearing. Nor has the Secretary given any reason whatsoever, let alone a reason constituting "good cause," for failing to incorporate such additional evidence into the record in the prior proceedings. Under these circumstances a remand would serve no purpose. Carroll v. Secretary, 705 F.2d 638, 644 (2d Cir. 1983).
The Secretary's motion for remand is denied. Plaintiff's cross-motion for judgment on the pleadings is granted. Plaintiff should submit a proposed order consistent with this opinion.
Dated: Brooklyn, New York
August 17, 1992
Eugene H. Nickerson, U.S.D.J.
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