Appeal from the United States District Court for the Western District of Pennsylvania (D.C. C.A. No. 83-3109).
Adams, Weis and Wisdom,*fn* Circuit Judges.
WISDOM, Senior Circuit Judge
The Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, § 2(d)(2)(C), 1984 U.S. Code Cong. & Ad. News (98 Stat.) 1974, 1797 (Reform Act) provides that cases involving determinations of medical improvement with respect to which a request for judicial review was pending on September 19, 1984, and which involve an individual litigant, shall be remanded to the Secretary of Health and Human Services for review in accordance with the provisions of the Social Security Act as amended by the Reform Act. Because this appeal was pending in this Court on September 19, 1984, we must decide whether the plaintiff's challenge to the Secretary's determination that, because of medical improvement, the plaintiff's entitlement to benefits ended in 1977 is properly before us. We hold that it is, and accordingly we remand the case to the Secretary under § 2(d) of the Reform Act.
The plaintiff, Lou Rankin, sustained a comminuted fracture of the left tibia in 1976. He applied for Social Security disability benefits and, on January 27, 1977, was awarded benefits as of the date of the injury, April 26, 1976. On January 25, 1980, the plaintiff returned to work and so notified the Social Security Administration soon thereafter. In March 1980 he completed a work activity report and in May 1980 advised the Administration that he felt he was able to return to work. The Administration requested that Dr. Robert Botkin, a physician who treated the plaintiff's fracture and last saw him in September 1977, complete a Physical Capacities Evaluation report. Based on the report and Dr. Botkin's clinical notes form 1977, the Administration determined that the plaintiff's disability ended in September 1977 and that his eligibility for benefits therefore ceased in November 1977. The Administration notified the plaintiff of its determination by letter dated July 11, 1980, which was mailed on September 28, 1980.
On October 21, 1980, the plaintiff timely requested reconsideration of the determination. The Administration affirmed its original decision and notified the plaintiff of this fact in a letter dated April 16, 1981. The letter also informed the plaintiff that he could request a hearing before an administrative law judge (ALJ) not later than 60 days after the date of receipt of the letter. The plaintiff did not request a hearing before an ALJ within the 60-day period.
The Administration determined that the plaintiff had received overpayment of benefits in the amount of $15,285.40. On December 21, 1981, the plaintiff was notified by letter that he did not qualify for a waiver of the overpayment because his medical records demonstrated that he was released to return to work in September 1977, but he did not report that fact to the Administration. The plaintiff then retained a lawyer, who challenged both the determination of disability cessation after 1977 and the refusal to waive refund of the overpayment. The plaintiff's lawyer requested a conference.
On April 15, 1982, the Administration notified the plaintiff's lawyer that the disability cessation determination was no longer in issue because the plaintiff failed to appeal from the determination upon reconsideration of April 16, 1981. The Administration scheduled a conference for May 20, 1982, limited to the issue whether the overpayment was to be waived. The plaintiff filed a statement with the Administration at the conference in support of his claim for waiver. By letter dated September 30, 1982 the plaintiff was advised that the decision denying his waiver request was affirmed and that he could request review of that decision by an ALJ within 60 days of receipt of the notice. The plaintiff timely requested a hearing before an ALJ.
The hearing was held on January 27, 1982, and on March 9, 1983, the ALJ issued a decision. The ALJ noted that the plaintiff did not timely appeal the determination that his disability ceased in 1977, but found that the disability cessation determination was nonetheless correct. The ALJ also ruled that waiver of the overpayment could not be made because the plaintiff was "at fault" for not reporting information that he should have known would be needed to determine if he was under a continuing disability. On July 25, 1983, the Appeals Council denied the plaintiff's request for review, and on November 22, 1983, it extended the time to file a civil action in district court under 42 U.S.C. § 405(g) to 60 days from the date of receipt of the November 22, 1983 letter. The plaintiff timely filed a complaint in district court on December 14, 1983.
In its opinion and order of May 10, 1984, the district court stated that the issues before it were whether the plaintiff's disability ceased in 1977, whether the plaintiff was at fault in receiving overpayment of disability benefits, and whether an exception to the Secretary's policy not to terminate disability benefits before a notice letter is sent to the recipient (in this case in 1981) was applicable to the plaintiff's case.*fn1 The district court granted summary judgment in favor of the defendant on all issues. The plaintiff filed a motion for relief from judgment under Fed.R.Civ.Pro. 60(b), insisting that the court made an error of fact in finding that one of Dr. Botkin's clinical reports contained a statement by Dr. Botkin that the plaintiff was told he had regained the capacity to work. The district court denied the motion,*fn2 and the plaintiff appealed.
The Reform Act requires us to remand to the Secretary "actions relating to medical improvement" that were pending on September 19, 1984."*fn3 We must therefore decide whether the cessation of disability issue was properly ...