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March 11, 1985

MARGARET HECKLER, Secretary of Health and Human Services

The opinion of the court was delivered by: LUONGO

 Plaintiff Giulia Colella began to receive Social Security disability insurance benefits in May, 1976. On November 13, 1981, the Secretary of Health and Human Services administratively terminated plaintiff's benefits. After a de novo hearing on October 7, 1982, an Administrative Law Judge found that plaintiff was no longer disabled and upheld the decision to terminate her benefits. The Appeals Council denied plaintiff's request to review the ALJ's decision, and plaintiff brought the instant action seeking judicial review.

 Both parties moved for summary judgment, and the matter was referred to Magistrate Powers for report and recommendation. Magistrate Powers, in a report filed October 1, 1984, recommended that plaintiff's motion for summary judgment be granted and the Secretary's motion denied. No objections were filed. In an order entered October 17, 1984, I adopted the Magistrate's Report and Recommendation and remanded the case to the Secretary with directions that she reinstate plaintiff's disability insurance benefits.

 Currently before me is the Secretary's motion under Fed.R.Civ.P. 60(b) to amend the judgment. The Secretary requests that I vacate my order and remand the case for her to reconsider under the new medical improvement standard set forth in the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (1984).

 Rule 60(b) provides: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding" on certain specified grounds. Although the Secretary has not set forth the grounds upon which she bases her motion, she has argued in effect that summary judgment should not have been granted in light of the Reform Act. Thus, I will consider whether this alleged error of law *fn1" is a basis for relief under Rule 60(b)(1), which permits a judgment to be vacated on grounds of "mistake." I will also consider whether "the judgment is void" for purposes of 60(b)(4) or whether relief should be granted for "any other reason" under 60(b)(6).

 Under the Reform Act, the Secretary may not terminate a recipient's disability benefits unless she finds substantial evidence of medical improvement in the recipient's condition. *fn2" The Act requires the court to remand "actions relating to medical improvement" in which "a request for judicial review was pending on September 19, 1984" to the Secretary for reconsideration under the new standards. P.L. 98-460 § 2(d)(2). The Act defines "action relating to medical improvement" as:

an action raising the issue of whether an individual who has had his entitlement to benefits under title II, XVI, or XVIII of the Social Security Act based on disability terminated (or period of disability ended) should not have had such entitlement terminated (or period of disability ended) without consideration of whether there has been medical improvement in the condition of such individual (or another individual on whose disability such entitlement is based) since the time of a prior determination that the individual was under a disability.

 Id. § 2(d)(6).

 In the instant action, plaintiff's request for judicial review was pending as of September 19, 1984. Sections 2(d)(2) and (6), however, require a remand only if the Secretary terminated plaintiff's benefits without considering whether her condition had improved medically. I must therefore determine as an initial matter whether the Secretary considered the issue of medical improvement.

 An Administrative Law Judge, in an opinion dated February 2, 1983, found that plaintiff had no severe impairment which would prevent her from engaging in substantial gainful activity. He held that her disability had ceased as of November, 1981 and that her entitlement to benefits ended in January, 1982. He did not explicitly state whether he based his decision on a reassessment of plaintiff's condition under the Secretary's current standards or upon a finding that plaintiff's condition had improved medically. The Third Circuit has since held in Kuzmin v. Schweiker, 714 F.2d 1233, 1237-38 (3d Cir. 1983), that the Secretary must show medical improvement in order to justify a termination of benefits. Before the ALJ made his decision in plaintiff's case, however, a number of federal courts had already required a showing of medical improvement. E.g. Miranda v. Secretary of Health, Education & Welfare, 514 F.2d 996, 998 (1st Cir. 1975); Singleton v. Schweiker, 551 F. Supp. 715, 723 (E.D. Pa. 1982); Shaw v. Schweiker, 536 F. Supp. 79, 82-83 (E.D. Pa. 1982); Timblin v. Harris, 498 F. Supp. 1107, 1108 (W.D. Pa. 1980).

 In a brief supporting her motion for summary judgment in the instant case, the Secretary recognized that she would have to show medical improvement. She therefore asserted that "there is substantial evidence of record to support a conclusion that plaintiff's condition has improved to such an extent as to render her capable of engaging in substantial gainful activity." Brief in Support of Defendant's Motion for Summary Judgment at 3-4, Colella v. Heckler, No. 83-3323. Applying the Kuzmin standard, Magistrate Powers determined that plaintiff's condition could not be found to have improved and that the Secretary's decision to terminate her benefits was not based on substantial evidence.

 The question remains, however, as to whether the Secretary considered even the Kuzmin standard in terminating plaintiff's benefits. Although the Secretary represented in moving for summary judgment that the record shows medical improvement, the Administrative Law Judge's opinion is silent concerning the issue. In light of that silence, I cannot conclude that the issue was properly considered in the administrative proceedings below.

 Despite the Secretary's failure to consider explicitly the issue of medical improvement, a refusal to remand is justified in this case. Magistrate Powers thoroughly reviewed the ALJ's evaluation of the evidence in light of the proper standard. My order adopting the Magistrate's Report and Recommendation in effect holds that the record could not support a decision by the Secretary that plaintiff's condition has improved. In the Reform Act's legislative history, Congress clearly expresses its disapproval of the Secretary's widespread and seemingly arbitrary termination of benefits. The Act, reflecting the concerns expressed in cases such as Kuzmin, establishes a clear and specific medical improvement standard for the benefit of disability insurance recipients. The remand provision was included to assist recipients terminated before the new Act became operative. See, ...

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