Seavey v. Social Security

United States Court of Appeals
For the First Circuit
____________________

No. 01-1202

CLAYTON R. SEAVEY,
Plaintiff, Appellee,

v.

JO ANNE B. BARNHART,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

____________________

Before

Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Young,* District Judge.

____________________

Michael E. Kerpan, Jr., Assistant Regional Counsel, Social
Security Administration, with whom Paula D. Silsby, United States
Attorney, and James M. Moore, Assistant United States Attorney, were
on brief for appellant.

* Of the District of Massachusetts, sitting by designation.
 Joyce K. Mykleby for appellee.

____________________

December 27, 2001
____________________

LYNCH, Circuit Judge. This case raises an issue of

importance in the law of this circuit on Social Security

appeals. The issue is this: after an Administrative Law Judge

("ALJ") has erred, when is it appropriate for a court to remand

for further proceedings and when is it appropriate to order

payment of social security benefits? The Commissioner of the

Social Security Administration1 appeals from a district court

order requiring the Commissioner to pay Clayton Seavey

disability benefits, rather than conduct further proceedings,

after the district court found that the Social Security ALJ had

erred at Step 5 of the disability determination process. Seavey

v. Apfel, No. 00-23-B (D. Me. Nov. 30, 2000). The Commissioner

1 In the district court proceedings, the defendant named
was Kenneth S. Apfel, then Commissioner of Social Security. By
the time this appeal was filed, Larry G. Massanari had become
Acting Commissioner of Social Security and was the appellant in
this case. After oral argument, Jo Anne B. Barnhart succeeded
Acting Commissioner Massanari as the Commissioner of Social
Security. Pursuant to F.R.A.P. 43(c), Commissioner Barnhart is
substituted as the defendant appellant.

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concedes that the ALJ decision was in error, but argues that the

proper remedy was for the district court to remand the case to

the Commissioner for further administrative proceedings. The

district court disposed of the case based upon a rule it had

established in a prior case, Field v. Chater, 920 F. Supp. 240

(D. Me. 1995), which adopted what appears to be either a per se

or a preferential rule that when a court is faced with an error

at Step 5, the appropriate remedy is an order that the applicant

be paid the benefits sought. The issue raised here is also

raised in another case we decide today, Freeman v. Barnhart, No.

01-1293 (1st Cir. 2001). We use this case to express the

general principles for decision.

We affirm the district court's order of remand, but

reverse the order for payment of benefits, and rule that, in

this instance, remand to the Commissioner with instructions for

further proceedings is the appropriate remedy.

I.

The Social Security Administration is the federal

agency charged with administering both the Social Security

disability benefits program, which provides disability insurance

for covered workers, and the Supplemental Security Income

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program, which provides assistance for the indigent aged and

disabled. 42 U.S.C. §§ 423, 1381a (1998). In July 1996,

Clayton Seavey applied for benefits under both of these

programs, claiming that pain relating to a back injury and heart

problems rendered him unable to work. After his application was

initially denied by the Commissioner and the Commissioner denied

reconsideration, Seavey received a hearing before an ALJ on

August 13, 1997.

When considering applications, the Commissioner employs

a five step process to determine if an individual is disabled

within the meaning of the Social Security Act. 20 C.F.R. §

416.920 (2001). All five steps are not applied to every

applicant, as the determination may be concluded at any step

along the process. Id. The steps are: 1) if the applicant is

engaged in substantial gainful work activity, the application is

denied; 2) if the applicant does not have, or has not had within

the relevant time period, a severe impairment or combination of

impairments, the application is denied; 3) if the impairment

meets the conditions for one of the "listed" impairments in the

Social Security regulations, then the application is granted; 4)

if the applicant's "residual functional capacity" is such that

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he or she can still perform past relevant work, then the

application is denied; 5) if the applicant, given his or her

residual functional capacity, education, work experience, and

age, is unable to do any other work, the application is granted.

Id.

Once the applicant has met his or her burden at Step

4 to show that he or she is unable to do past work due to the

significant limitation, the Commissioner then has the burden at

Step 5 of coming forward with evidence of specific jobs in the

national economy that the applicant can still perform. Arocho

v. Sec'y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir.

1982). If the applicant's limitations are exclusively

exertional, then the Commissioner can meet her burden through

the use of a chart contained in the Social Security regulations.

20 C.F.R. § 416.969; Medical-Vocational Guidelines, 20 C.F.R.

pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in 20 C.F.R.

§ 416.969; Heckler v. Campbell, 461 U.S. 458 (1983). "The

Grid," as it is known, consists of a matrix of the applicant's

exertional capacity, age, education, and work experience. If

the facts of the applicant's situation fit within the Grid's

categories, the Grid "directs a conclusion as to whether the

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individual is or is not disabled." 20 C.F.R. pt. 404, subpt. P,

App. 2, § 200.00(a), cited in 20 C.F.R § 416.969. However, if

the applicant has nonexertional limitations (such as mental,

sensory, or skin impairments, or environmental restrictions such

as an inability to tolerate dust, id. § 200(e)) that restrict

his ability to perform jobs he would otherwise be capable of

performing, then the Grid is only a "framework to guide [the]

decision," 20 C.F.R. § 416.969a(d) (2001). See also Pratts v.

Chater, 94 F.3d 34, 39 (2d Cir. 1996) (discussing use of Grid

when applicant has nonexertional limitations).

Seavey was forty-three when he applied for benefits.

His work history is that of an unskilled laborer; his education

ended at seventh grade. At the ALJ hearing, Seavey presented

medical evidence concerning his back pain and the degree of

limitation it imposes on him. He also presented evidence in the

form of an expert report from a psychologist, Dr. Greene. Dr.

Greene's report stated that "Seavey appears to be a 'textbook

example' of an individual with passive-aggressive personality

disorder" who may also meet the diagnostic criteria for avoidant

personality disorder, and that he tested at the borderline

Verbal IQ range. Following the hearing, Seavey's attorney

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submitted a letter from Dr. Greene,2 along with psychological

testing results, to clarify Dr. Greene's earlier findings,

particularly her notation that Seavey had an elevated score on

the "Work Interference" scale, indicating behavioral attributes

that would negatively affect his ability to work. Dr. Greene's

letter stated that Seavey may meet the diagnostic criteria for

a Reading Disorder and that "he would have great difficulty

performing any jobs that require much reading."3 However, the

letter also stated that Seavey's low IQ and reading ability,

combined with his desire to get the testing over with quickly,

meant that the Work Interference score might not be valid. Dr.

Greene also noted that she had not observed any problems with

Seavey's concentration, persistence, or pace during her

2 At the close of the hearing, the ALJ indicated that he
would keep the record open until September 10, 1997. The
supplemental letter from Dr. Greene is dated September 4, 1997
and so we will assume that it was part of the record before the
ALJ. It makes little difference to the outcome, as the most
substantial evidence of a nonexertional limitation is found in
the initial report.
3 Even if Seavey were illiterate, however, that would not
amount to a disability; nor is illiteracy considered to
significantly limit the jobs available, even to those applicants
who are physically limited to sedentary work. 20 C.F.R. pt.
404, subpt. P, App. 2, § 201.00(i).

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interactions with him, and that she did not believe he would

"decompensate on the job." In addition, records from one of

Seavey's treating physicians indicate that he did not appear to

have any problems in understanding, concentration, or

persistence.

The ALJ found that Seavey is limited to "light work"

by his back ailment. The ALJ's decision did not mention Dr.

Greene's report and letter or any psychological evidence,4 but

simply found that Seavey "has no significant non-exertional

limitations." The ALJ then used the Grid to find him to be not

disabled. Seavey appealed to the Social Security Appeals

Council, arguing that his mental and cognitive impairments were

significant nonexertional limitations and therefore the Grid was

not dispositive of his claim. Almost two years later, the

Appeals Council denied his appeal.

Seavey then sought review in federal district court.

The district judge assigned the case to a magistrate judge, who

prepared a report and recommendation. As to the Supplemental

Security Income claim, the magistrate judge found that the ALJ

4 During the hearing, the ALJ, referring to Dr. Greene's
initial report, noted that "[t]here's no evidence that there's anything
of a disabling nature in his psychological profile in this report."

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had erred by applying the Grid to Seavey after stating in the

hearing that the psychological profile did not indicate anything

of a "disabling nature." Seavey v. Apfel, No. 00-23-B, 2000 WL

1499277, at *2 (D. Me. Oct. 6, 2000). The correct question, the

magistrate judge's report said, is not whether the nonexertional

limitations are themselves disabling, but whether the

nonexertional limitations significantly limit the applicant's

ability to perform work at a given exertional level (in Seavey's

case, "light" work). Id. If so, then the Grid is not

dispositive. Id. The magistrate judge's report stated that the

Commissioner bears the burden of proof at Step 5, and that when

nonexertional limitations have more than a marginal effect, the

Commissioner must present testimony from a vocational expert.

Id. at *3. Finally, the magistrate judge's report recommended

that the district judge order the Commissioner to pay

Supplemental Security Income benefits to Seavey.5 Id. Although

the magistrate judge’s review of the ALJ’s decision was to

5 The magistrate judge recommended affirmance of the denial of
Seavey's application for Social Security disability benefits because
Seavey had not demonstrated he was disabled on or before December 31,
1995, the last date that he was covered by Social Security disability
insurance. Seavey, 2000 WL 1499277, at *2. There has been no appeal
from that determination, so the SSD claim has been abandoned.

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determine whether substantial evidence supported the findings of

the ALJ, Ward v. Commissioner of Social Security, 211 F.3d 652,

655 (1st Cir. 2000), the district court’s review of the

magistrate judge’s decision is de novo as to objections raised.

28 U.S.C. § 636(b)(1)(C) (1994).

The district judge agreed with the magistrate judge's

report and, in a one paragraph order, vacated the ALJ decision

and ordered the Commissioner to pay benefits to Seavey.

II.

The Commissioner argues that, although the ALJ erred

in not discussing the evidence of psychological impairment, the

evidence, including Dr. Greene's report, did not necessarily

establish the existence of a significant nonexertional

limitation. Therefore, the Commissioner says, the ALJ's opinion

could have been affirmed in its current state on the assumption

that the ALJ had implicitly discredited Dr. Greene's letter and

report. This argument is not persuasive because, although "a

nonexertional impairment can have a negligible effect," ordinarily the

ALJ "must back such a finding of negligible effect with the evidence to

substantiate it," Talbot v. Heckler, 814 F.2d 1456, 1465 (10th Cir.

1987), unless the matter is self-evident.

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 Alternatively, the Commissioner argues that the proper

remedy would be a remand for further administrative proceedings.

She argues that a remand with an order to pay benefits is only

appropriate where the evidence shows a "virtually certain

entitlement to benefits."

The Commissioner further maintains that this magistrate

judge has a policy of remanding with an order to pay benefits,

rather than remanding for further administrative proceedings,

whenever it finds an error at Step 5 in the process.6 Counsel

for Seavey disputed that point at oral argument. The magistrate

judge, in his Report and Recommendation for this case, relied

upon his reasoning in a previous case, Field v. Chater, 920 F.

Supp. 240 (D. Me. 1995), cited in Seavey, 2000 WL 1499277, at

*3. In Field, the magistrate judge wrote that "[w]hen the

Commissioner had a full and fair opportunity to develop the

record and meet her burden at Step 5, there is no reason for the

court to remand for further factfinding." Field, 920 F. Supp.

6 The Commissioner also argues that, in this case, the ALJ
error was actually in Step 4, not Step 5, as nonexertional limitations
are a component of the applicant's "residual functional capacity,"
which is determined at Step 4. We do not see how this technicality
would affect the outcome of the case -- particularly since the denial
of benefits occurred at Step 5 -- and therefore, we will not address
this issue.

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at 243. The opinion in Field distinguished that case from a

decision of this court, Rose v. Shalala, 34 F.3d 13, 19 (1st

Cir. 1994), in which we remanded for further proceedings because

the ALJ's error in applying the Grid at Step 5 meant that the

vocational expert had not been asked the proper questions about

a nonexertional limitation. Field, 920 F. Supp. at 243. The

opinion in Field emphasized that "where the problem is . . . the

more fundamental problem of insufficient evidence on an issue

for which the Commissioner carries the burden," further

proceedings are not warranted. Id. at 243. In this case, the

magistrate judge looked no further than the Field case to

conclude that "the [C]ommissioner's failure to carry his burden

at Step 5 requires remand for payment of benefits," Seavey,

2000 WL 1499277, at *3, without analyzing the differences

between the cases.

Seavey responds that the Commissioner is simply being

held to the same standard as any other litigant in any other

case -- if he does not meet his burden, then an order to pay

benefits is appropriate. He claims that "[t]he Secretary who

has the benefit of institutional expertise and a huge federal

bureaucracy in effect argues that no matter how egregious the

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error they must be given one chance after another to remedy

their mistake unless the record demonstrates with virtual

certainty that the applicant will win on remand." In essence,

Seavey argues that the Commissioner wants an impermissible

second bite at the apple.

The premise of Seavey’s position is that the

Commissioner should be treated like any other litigant and that

remanding and allowing new evidence would be giving the

Commissioner an unfair advantage. The premise is not entirely

correct. Because of the nonadversarial nature of Social

Security disability determinations, the Commissioner is not a

litigant and has no representative at the agency level. Indeed,

the model is investigatory, or inquisitorial, rather than

adversarial. Sims v. Apfel, 530 U.S. 103, 110 (2000). It is

the ALJ's duty to investigate and develop the facts and develop

the arguments both for and against the granting of benefits.

Id. At the ALJ level, the applicant is the only litigant

presenting evidence. While the agency may have already

generated evidence and the ALJ may generate more -- for example,

by sending the applicant for a consultative exam or by calling

a medical or vocational expert -- these experts function as

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consultants in the adjudicative process, assisting the ALJ in

determining what the outcome should be. They are not experts

retained in an effort to shore up an agency’s litigation

position. That is because, until the ALJ renders a decision on

whether an applicant is disabled or not, the agency has not

taken a final position. Consequently, when an ALJ improperly

concludes that a nonexertional impairment has no significant

impact on residual functional capacity, that is an adjudicator

making a mistake, not a party litigator failing to present

evidence.

III.

Standard of Review

Judicial review of Social Security administrative

determinations is authorized by 42 U.S.C. § 405(g) (1994). Both

the fourth and sixth sentences of this subsection grant federal

courts the power to remand cases to the Commissioner. The

fourth sentence of this subsection states that a reviewing court

"shall have power to enter, upon the pleadings and transcript of

the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing." 42 U.S.C. § 405(g). The

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sixth sentence states that the court "may at any time order

additional evidence to be taken before the Commissioner of

Social Security, but only upon a showing that there is new

evidence which is material and that there is good cause for the

failure to incorporate such evidence into the record in a prior

proceeding." Id. As discussed below, we view this case as

governed by the fourth sentence of § 405(g). See Sullivan v.

Finkelstein, 496 U.S. 617, 625-26 (1990); see also Shalala v.

Schaefer, 509 U.S. 292, 296-97 (1993).

Our review of a district court's decision to affirm or

reverse a final decision of the Commissioner is de novo and we

use the same standard to review the correctness of the

Commissioner's decision as does the district court: that is,

whether the final decision is supported by substantial evidence

and whether the correct legal standard was used. 42 U.S.C. §

405(g); Ward, 211 F.3d at 655. Questions of law are reviewed de

novo, both by the district court and by this court. Id.; Brown

v. Apfel, 71 F. Supp. 2d 28, 30 (D.R.I. 1999), aff'd, 230 F.3d

1347 (1st Cir. 2000). Since the district court appears to have

adopted a rule of law as to disposition on remand, our review of

this rule is de novo.

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 Some of our sister circuits have held that, although

district court decisions reversing or affirming a decision of

the Commissioner are reviewed de novo, a district court's

decision as to whether to remand for proceedings or order

payment once an error has been found should be reviewed only for

abuse of discretion. See Higgins v. Apfel, 222 F.3d 504, 505

(8th Cir. 2000); Harman v. Apfel, 211 F.3d 1172, 1176-78 (9th

Cir.), cert. denied, 531 U.S. 1038 (2000); Nelson v. Apfel, 210

F.3d 799, 801-02 (7th Cir. 2000). Seavey has urged us to adopt

this approach, and the Commissioner has not contested this point

before us.7

However, we find that the decision as to what remedy

to apply under sentence four of § 405(g) is largely dictated by

the type of error made by the ALJ or Commissioner, as discussed

below, and therefore is not, for the most part, a matter of

discretion. Unlike in appeals where the district court has

acted as the trial court, the district court here has no

7 We note that, in many of the cases holding that abuse
of discretion is the proper standard of review, the deferential
standard benefitted the Commissioner, as the district court had
ordered further proceedings upon remand and the applicant was
seeking an order for immediate payment. See Higgins, 222 F.3d
at 505; Harman, 211 F.3d at 1174; Nelson, 210 F.3d at 801.

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institutional advantage over this court. The district court

reviews the same cold administrative record as do we, applying

the same "substantial evidence" test. The First Circuit has

never recognized any distinction between the scope of a district

court's review of Social Security determinations and the scope

of appellate review. See, e.g., Ward, 211 F.3d at 655; Nguyen

v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam); Splude

v. Apfel, 165 F.3d 85, 88 (1st Cir. 1999). Similarly, under the

Administrative Procedure Act, courts of appeals directly review

the administrative action and use the same standard of review as

the district court. Baystate Alternative Staffing, Inc. v.

Herman, 163 F.3d 668, 674 (1st Cir. 1998). We are not convinced

that we should now create an exception to this general rule for

cases challenging the remand instructions when the Commissioner

or ALJ has erred. Therefore, we review de novo the district

court's decision to order payment.8

8 Even if we were to apply the abuse of discretion
standard, the result would be the same in this case. The
district court's rule that an order for payment is appropriate
whenever the Commissioner has failed to disprove disability at
Step 5 is an erroneous interpretation of the law; abuse of
discretion review encompasses errors of law. See United States
v. Davis, 261 F.3d 1, 21 (1st Cir. 2001).

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 IV.

Remedy Upon Remand

Applying our standard of review here, we hold that the

district court committed error by remanding with instructions to

pay. Such a result is inconsistent with our precedent and an

unnecessary abrogation of the Commissioner's authority to

adjudicate applications for disability benefits.9

9 Before addressing the remedial issue, we pause to note
another issue argued by the parties. The magistrate judge
assumed that at step 5 the Commissioner bears the burden of
proof, which influenced the magistrate judge's recommendation
for disposition. Seavey, 2000 WL 1499277, at *3. There is,
however, some dispute over who bears the burden of proof at the
fifth step of the disability determination process. At the
fifth step, the Commissioner bears some type of burden to come
forward with evidence showing that there are jobs that the
applicant can perform despite his limitations. However, the
parties dispute whether this is a burden of proof or merely a
burden of production. In a sense, this discussion relies on a
series of misnomers, as the Commissioner is not actually
represented as a litigant. It may be better to think of this
not as a shifting of burdens, but rather as a rule providing
that the applicant is not under any obligation to produce
evidence at Step 5.
This is not a new debate, see Dobrowolsky v. Califano, 606
F.2d 403, 406 (3d Cir. 1979), but there continues to be no clear
answer within appellate case law. In the First Circuit, our
terminology has not been entirely consistent. Compare Heggarty
v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991) (per curiam)
(referring to Agency's "burden of proof"), with Torres v. Sec'y
of Health & Human Servs., 677 F.2d 167, 168 (1st Cir. 1982)
("burden . . . of showing"), Arocho, 670 F.2d at 375 ("burden of
coming forward with evidence"), and Geoffroy v. Sec'y of Health

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 The question of remedy is tied to the strictures of §

405(g): “the findings of the Commissioner of Social Security as

to any fact, if supported by substantial evidence, shall be

conclusive.” 42 U.S.C. § 405(g). Hence, the responsibility for

weighing conflicting evidence, where reasonable minds could

differ as to the outcome, falls on the Commissioner and his

designee, the ALJ. Walker v. Bowen, 834 F.2d 635, 639-40 (7th

Cir. 1987). It does not fall on the reviewing court. The

question of what instructions should accompany a remand order

will turn on the nature of the error at the ALJ proceedings.

& Human Servs., 663 F.2d 315, 317 (1st Cir. 1981)
("responsibility to establish").
In most cases involving review of Social Security
administrative determinations, the distinction between a burden
of proof and a burden of production will be meaningless, as our
inquiry into the evidence (like that of the district court) is
limited to a determination of whether the Commissioner's
decision was supported by substantial evidence. Miranda v.
Sec'y of Health, Educ. & Welfare, 514 F.2d 996, 998 (1st Cir.
1975). It is possible in some case that the Commissioner's
burden may have some relevance in determining whether further
proceedings are appropriate. Nonetheless, in this case, it is
not determinative. The only evidence introduced by the
Commissioner at Step 5 was the Grid, which was insufficient as
a matter of law to deny benefits, given that Seavey had
introduced evidence to support his claim that nonexertional
limitations significantly limited his ability to work. Rose,
34 F.3d at 19; Heggarty, 947 F.2d at 995-96; 20 C.F.R. §
416.969a.

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 Here, the Commissioner agrees that the ALJ was in error

because the ALJ ignored relevant and material evidence. The

reports were relevant to show that Seavey had nonexertional

limitations that could significantly impair his ability to

perform the full range of light or sedentary work and, hence,

that reliance on the Grid was inappropriate. Rose, 34 F.3d at

19; Heggarty, 947 F.2d at 995-96; 20 C.F.R. § 416.969a. The

Commissioner says that ordinarily in cases with this sort of

error, she would have voluntarily sought remand to the ALJ. The

Commissioner did not do so here because, in the Commissioner's

view, the court can review the record and decide that the only

reasonable conclusion is that Seavey has not shown that any

nonexertional limitation significantly affects his ability to

perform light work, and therefore he is not disabled. But, the

Commissioner says, if the court does not agree that this is the

only reasonable conclusion, then we should send the matter back

for further proceedings.

Thus, we are confronted with a case where the ALJ did

not make any findings on a key issue -- whether Seavey has a

significant nonexertional impairment. As a result, there was no

evidence introduced on a second, subordinate issue; if the ALJ

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had found that Seavey had a significant, nonexertional

limitation, he would have then progressed to a finding of

whether the combined exertional and nonexertional impairments

rendered Seavey unable to perform a significant number of light

or sedentary jobs. Seavey does not advance the argument before

this court that the record, as it currently stands, conclusively

shows that he is disabled under the meaning of the statute.

That would require vocational evidence to establish whether

there are jobs he could perform, given his combined exertional

and nonexertional limitations. Heggarty, 947 F.2d at 996.

Instead, Seavey maintains that the Commissioner is to blame for

the insufficiency of the record, as the Commissioner failed to

call a vocational expert to testify at the hearing, and

therefore she need not be given a second chance through further

proceedings.10

Such an approach, however, is not consistent with the

dictates of § 405(g) or with the approach generally taken when

reviewing administrative actions. Instead, the rule we adopt is

10 This was not Seavey's original position before the
district court. Originally, he sought only a remand for further
proceedings, but the magistrate judge suggested he request an
order to pay instead.

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that ordinarily the court can order the agency to provide the

relief it denied only in the unusual case in which the

underlying facts and law are such that the agency has no

discretion to act in any manner other than to award or to deny

benefits. Put differently, if the evidence and law compelled

one conclusion or the other, then the court could order an award

of benefits or affirm a denial of benefits. For example, a

judicial award of benefits would be proper where the proof of

disability is overwhelming or where the proof is very strong and

there is no contrary evidence. See Mowery v. Heckler, 771 F.2d

966, 973 (6th Cir. 1985). Similarly, if correcting the legal

error clarified the record sufficiently that an award or denial

of benefits was the clear outcome, then the court may order

payment or affirm denial. Conversely, if an essential factual

issue has not been resolved, as here, and there is no clear

entitlement to benefits, the court must remand for further

proceedings.11 A number of circuits appear to have adopted this

11 If the district court remands to the agency for further
proceedings where the applicant has sought payment of benefits
and has requested a remand for further proceedings only as an
alternative remedy, the applicant may appeal that remand order
to this court. Forney v. Apfel, 524 U.S. 266, 271 (1998).

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view. See Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir.

2001) ("[A] remand for further proceedings is unnecessary if the

record is fully developed and it is clear from the record that

the ALJ would be required to award benefits."); Faucher v.

Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)

(improper for district court to award benefits where there is

conflicting evidence as to the severity of applicant's

impairment); Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.

1993) ("This court . . . [may] remand the case for an entry of

an order awarding disability benefits where the Secretary has

already considered the essential evidence and it is clear that

the cumulative effect of the evidence establishes disability

without any doubt."); see also Nielson v. Sullivan, 992 F.2d

1118, 1122 (10th Cir. 1993) (remand with order to pay where

passage of time had placed applicant in an older age group,

making award a foregone conclusion); K.C. Davis & R.J. Pierce

Jr., 2 Administrative Law Treatise 163-64 (3d ed. 1994)

(adopting test but adding requirement that the court conclude

that further delay would harm the applicant).

This rule also is consistent with the general rules for

judicial review of administrative action. When an agency has

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not considered all relevant factors in taking action, or has

provided insufficient explanation for its action, the reviewing

court ordinarily should remand the case to the agency. Fla.

Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ("If the

record before the agency does not support the agency action . . . the

proper course, except in rare circumstances, is to remand to the agency

for additional investigation or explanation.").

The district court's and the magistrate judge's decisions

rest, in part, on the erroneous conclusion that the Commissioner

would not be able to supplement a record upon remand, absent a

showing of "good cause" for failure to introduce the necessary

vocational evidence at the ALJ hearing, and therefore a remand

would not serve any purpose. See Field v. Chater, 920 F. Supp.

240, 244 (D. Me. 1995). However, this reasoning depends on two

incorrect assumptions. First, it assumes that additional

evidence is definitively needed. Additional evidence would only

be necessary in this case if the ALJ determines that Seavey's

evidence indicates a significant nonexertional limitation.12

12 At this stage, we make no determination as to whether an ALJ
finding that the evidence was sufficient to show a significant
nonexertional limitation, or a finding that the evidence was not
sufficient to show a significant nonexertional limitation, would meet
the "substantial evidence" test.

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Without that preliminary finding, we cannot know whether the

denial of benefits can withstand the lack of vocational

evidence.

Second, the magistrate judge's and district court's

reasoning assumes that good cause is a requirement for

introducing new evidence in a sentence four remand. The "good

cause" concept is derived from the sixth sentence of § 405(g),

quoted above. Field, 920 F. Supp. at 244. The magistrate

judge's recommendation also relies on older Second Circuit

precedent, which also employs the "good cause" reasoning in

determining when orders to pay are appropriate. Id. at 242

(citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638,

643-44 (2d Cir. 1983)). However, this reasoning erroneously

combines two separate grants of remand power contained within §

405(g) -- that granted by the fourth sentence and that granted

by the sixth sentence. Since the Second Circuit decided

Carroll, the Supreme Court has made clear that the sixth

sentence of § 405(g) and the fourth sentence of § 405(g) are two

distinct grants of remand power, which apply in two distinct

situations. Shalala v. Schaefer, 509 U.S. 292, 297-301 (1993);

Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). Sentence six

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and its "good cause" limitation come into play only "when the

district court learns of evidence not in existence or available

to the applicant at the time of the administrative proceeding

that might have changed the outcome of that proceeding."

Finkelstein, 496 U.S. at 626. Sentence six has been referred to

as a "pre-judgment remand," employed where the federal court has

not ruled on the validity of the Commissioner's position, while

sentence four has been referred to as a "post-judgment remand."

See Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 175

(6th Cir. 1994). This case is clearly governed by sentence four

and therefore the "good cause" restriction of sentence six does

not apply.

Unlike sentence six, sentence four does not contain any

statutory limits on the ability to supplement the record on

remand. Nonetheless, we do not rule out the possibility of some

constraints in unusual cases. In some Social Security cases,

for example, the delay in final disposition of claims may, at

times, make requests by the Commissioner for additional

proceedings a matter of some concern. Many Social Security

applicants are represented by non-lawyers or have no

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representation at all, and most are indigent.13 Some circuits

have exercised what we view as a form of equitable power to

order benefits in cases where the entitlement is not totally

clear, but the delay involved in repeated remands has become

unconscionable. E.g., Morales v. Apfel, 225 F.3d 310, 320 (3d

Cir. 2000) (remanding for payment of benefits in light of

"substantial evidence" of a severe mental disability and

"considerable inexplicable delays" resulting in passage of ten

years since application). In such cases, our sister circuits

have warned the Commissioner that administrative deference does

not entitle the Commissioner to endless opportunities to get it

right.14 See, e.g., Miller v. Chater, 99 F.3d 972, 978 (10th

13 Moreover, as representatives are commonly paid for
their advocacy during the agency adjudication with a percentage
of the lump sum retroactive benefit payment that applicants
receive when their applications are approved, see 42 U.S.C. §
406(a)(2)(A) (1994), there is little financial incentive for the
agency or the representative to expedite agency proceedings. We
do note that the Equal Access to Justice Act, under which the
Commissioner may be compelled to pay the attorney's fees and
expenses of successful applicants, Schaefer, 509 U.S. at 302-03,
provides an incentive to the agency not to take unreasonable
positions on appeal.
14 At the same time, the Supreme Court has noted that Congress
was fully aware of the serious delays in resolution of disability
claims, yet declined to impose deadlines; as a result, the Court
vacated an injunction imposing a flat deadline. Heckler v. Day, 467
U.S. 104 (1984).

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Cir. 1996) (remanding for fifth administrative hearing, but

cautioning "the agency that the Secretary is not entitled to

adjudicate a case ad infinitum until [she] correctly applies the

proper legal standard and gathers evidence to support [her]

conclusion.") (internal quotations omitted). This, however, is

not such a case, and we need not decide the extent of any such

equitable limits here. In this case, we leave the question of

additional evidence to the discretion of the ALJ, based on his

resolution of the conflicting evidence of nonexertional

impairments.

Accordingly, the order for payment of benefits is vacated

and the case is remanded with instructions to remand to the

Commissioner for further proceedings not inconsistent with this

opinion.

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