Alvin Durga v. Secretary of Health and Human Services

899 F.2d 14

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Alvin DURGA, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 89-1524.

United States Court of Appeals, Sixth Circuit.

April 2, 1990.

Before DAVID A. NELSON and BOGGS, Circuit Judges, and FRANK J. BATTISTI, District Judge.*

PER CURIAM.

1

This is a social security case in which disability benefits were terminated on the basis of a finding by the Secretary that the plaintiff, Alvin Durga, had engaged in substantial gainful activity after his disability had been established. The Secretary terminated Mr. Durga's benefits effective September 1982, and Mr. Durga sought judicial review. The United States District Court for the Western District of Michigan (Hillman, C.J.) found that substantial evidence supported the Secretary's finding. For the reasons stated in Chief Judge Hillman's opinion, we agree. See Durga v. Secretary of Health and Human Servs., No. G88-345 CA7, slip op. at 2-5 (W.D.Mich. Mar. 10, 1989).

2

Plaintiff urges that even if we find the Secretary's decision supported by substantial evidence, we should remand the case for determination of whether Mr. Durga is entitled to benefits from 1985 on. The administrative law judge indicated that there was little or no evidence of Mr. Durga engaging in substantial gainful activity after the early part of 1985, and that Mr. Durga "should not be penalized into the indefinite future ... should future substantial evidence show he has discontinued his substantial gainful work activities."

3

Once the Secretary properly determines that disability benefits must cease, a claimant may obtain benefits again only by filing a new application. See 20 C.F.R Secs. 404.315, 404.316 (1989). The only question properly before this court is whether substantial evidence supports the finding that Mr. Durga's disability ended in 1982. If Mr. Durga believes he subsequently became eligible for disability benefits, it is up to him to file a new application.

4

The judgment is AFFIRMED.

*

The Honorable Frank J. Battisti, U.S. District Judge for the Northern District of Ohio, sitting by designation