
    Guarino GOMEZ, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 Civ. 0253 (RWS).
    United States District Court, S.D. New York.
    Nov. 27, 1984.
    Sher, Herman & Belloñe, P.C., New York City, for plaintiff; Peter S. Tipograph, New York City, of counsel.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Frederick M. Lawrence, Asst. U.S. Atty., New York City, of counsel.
   MEMORANDUM OPINION

SWEET, District Judge.

Plaintiff Guarino Gomez (“Gomez”) seeks judicial review of a final decision of the Secretary of Health and Human Services (the “Secretary”) terminating Gomez’s federal disability benefits and opposes the Secretary’s motion to remand. The motion is granted.

The Secretary moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P., and thereafter moved for an order remanding the case pursuant to 42 U.S.C. § 405(g) and Dixon v. Heckler, 83 Civ. 7001 (S.D.N.Y. July 25, 1984), a class action brought in behalf of claimants who were denied disability benefits on the ground that their claimed impairment did not meet the “severity” standard of 20 C.F.R. § 404.1520(c). Gomez is a member of the Dixon class. After holding the “severity” regulation invalid in light of the statutory definition of disability, the Honorable Morris E. Lasker ordered the Secretary to consent to remand or move to remand in all cases involving Dixon class members, which motion is now at issue in view of Gomez’s opposition on the ground that a full record has already been developed in proceedings before the Social Security Administration which, Gomez contends, establishes a sufficient basis for a reversal of the prior determination.

Authority exists that permits me to retain this case in federal court, despite the ALJ’s application of an improper standard, if the record below is sufficiently developed for a determination of whether the ALJ’s decision should be reversed. See Glover v. Heckler, 588 F.Supp. 956, 959 (S.D.N.Y.1984); Muniz v. Heckler, 83 Civ. 6590 (S.D.N.Y.1984). However, where the decision of the Secretary is based on the application of an improper legal standard, a remand is the most appropriate remedy. See Chico v. Schweiker, 710 F.2d 947, 955 (2d Cir.1983); Zanella v. Heckler, 83 Civ. 6309 (October 5, 1984). It would be inappropriate for me to make a determination for the Secretary as to whether a plaintiff would have been found disabled if a proper standard had been applied. Since Dixon establishes as a matter of law that an improper legal standard was applied in denying Gomez’s application for disability benefits, the most appropriate relief this court can give is to remand the case for further proceedings pursuant to Dixon v. Heckler. See Higgins v. Heckler, 84 Civ. 1234 (S.D.N.Y.1984). That is, of course, without prejudice to Gomez’s right to seek further judicial review if, although applying the proper legal standards, the Secretary arrives at a result not supported by substantial evidence.

Motion granted. Case remanded, and complaint dismissed without prejudice.

IT IS SO ORDERED.  