United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2011 Decided July 8, 2011
No. 09-5192
KEVIN M. JONES,
APPELLANT
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00852)
Micah W.J. Smith, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on
the briefs was Matthew M. Shors.
R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Frederick E. Haynes and
Harry B. Roback, Assistant U.S. Attorneys.
Before: SENTELLE, Chief Judge, GINSBURG and
GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
2
GINSBURG, Circuit Judge: When the Commissioner of
the Social Security Administration (SSA) denied his
application for disability benefits, Kevin Jones filed suit in the
district court. Recognizing the deficiency in the
administrative record, the SSA asked the court to remand the
case so the agency could supplement the record, and the court
obliged. Jones now argues pro se that the district court had no
authority to permit additional evidence to be taken on remand.
Although Jones has a point, we vacate the district court’s
judgment for a different reason, raised by the amicus curiae:
The district court misapprehended the extent of its remedial
power.
I. Background
Because we have no occasion to wade into the merits of
Jones’s claim to disability benefits, we can be brief in setting
forth the facts relevant to this case: In 1995 Jones suffered an
injury leaving him unable to continue working for the City of
Baltimore as an electrician. After trying unsuccessfully to do
other types of work, Jones filed a claim with the SSA for
disability benefits. An Administrative Law Judge denied the
claim; he found Jones had made a prima facie case of
disability but could perform “other work” and therefore was
not entitled to benefits. In reaching that conclusion, the ALJ
relied exclusively upon a standardized set of guidelines
developed by the SSA to determine the types of work an
individual with a given set of infirmities generally can
perform.
Regulations promulgated by the Commissioner of the
SSA make clear, however, that exclusive reliance upon those
guidelines is inappropriate where, as here, the claimant’s
impairment is due in part to pain. See 20 C.F.R. §
3
416.969a(c). The agency realized this problem only after the
ALJ’s decision had become final, the SSA had answered
Jones’s complaint in the district court, and Jones had filed a
motion for summary judgment. Rather than respond to that
motion, the SSA moved for entry of “a judgment that reverses
the final decision of [the SSA] and that remands the cause ...
for further administrative proceedings.” The SSA proposed to
do three things on remand: (1) “Hold a new hearing to obtain
supplemental vocational expert evidence”; (2) Assess that
expert testimony along with the relevant guidelines; and (3)
“Issue a new decision.”
Three days later, without waiting to hear from Jones, the
district court entered an order reversing the final decision of
the SSA and remanding the case to the agency “for further
administrative proceedings”; doing so, the court volunteered,
“would not prejudice” Jones. Jones filed a motion for
reconsideration, which the district court denied on the ground
Jones had “already obtained the maximum relief — reversal
and remand — that the Court is authorized to award.” Jones
appealed pro se and this court appointed an amicus curiae to
present arguments in support of his cause.
II. Analysis
This appeal turns upon a vexing provision of the Social
Security Act, 42 U.S.C. § 405(g), concerning judicial review
of a final decision by the Commissioner. Sentences four and
six of that section provide, in relevant part:
[4] The 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
4
Security, with or without remanding the cause
for a rehearing.
...
[6] The court may, on motion of the
Commissioner of Social Security made for
good cause shown before the Commissioner
files the Commissioner's answer, remand the
case to the Commissioner of Social Security
for further action by the Commissioner of
Social Security, and it 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 ... .
In this case the Commissioner sought a remand expressly
pursuant to sentence four, and the district court seems to have
relied upon that sentence in remanding the case. Although the
court cited § 405(g) only as a whole, there is no indication it
held the Commissioner to the good cause requirement in
sentence six; indeed, the court’s only stated rationale for
granting the motion was that doing so “would not prejudice”
Jones. More important, the Commissioner made no attempt
to and could not have satisfied the conditions in sentence six;
his motion to remand came after he had filed an answer, and
an ALJ’s misunderstanding of clear agency regulations can
hardly be thought to give the Commissioner good cause not to
compile an appropriate record after the claimant has made his
prima facie case. Clearly, if the district court had authority to
remand the case, that authority had to be found in sentence
four. See Melkonyan v. Sullivan, 501 U.S. 89, 99–100 (1991)
5
(“sentences four and six set forth the only kinds of remands
that are permitted under § 405(g)”).
The amicus argues sentence four does not authorize a
district court to order a remand solely so the Commissioner
may supplement the record. The premise of this argument is
that the term “rehearing” in sentence four connotes a second
trip through the same evidence. The meaning of “rehearing”
is not so clearly limited, however; in fact, the leading legal
dictionaries are in conflict on just this point. Compare
BALLENTINE’S LAW DICTIONARY 1081 (3d ed. 1969) (“a new
consideration of the case ... upon the pleadings and
depositions already in the case”), with MERRIAM-WEBSTER’S
DICTIONARY OF LAW (1996), available at
http://dictionary.findlaw.com/definition/rehearing.html
(rehearing “may encompass new matters (as evidence or
issues)”), and with BLACK’S LAW DICTIONARY 1339 (9th ed.
2009) (silent as to the scope of the record on rehearing). The
Congress’s use of the word “rehearing” therefore does not, by
itself, signify whether the SSA may take additional evidence
on remand.
The amicus attempts to resolve this ambiguity by
reference to other sections of the statute but his arguments on
that score are no more conclusive. He first points to the
phrase “evidentiary hearing” in § 405(b)(2), which concerns
the SSA’s “reconsideration” of certain disability
determinations, and argues use of the adjective there
“confirms Congress’s awareness that a rehearing or
reconsideration ordinarily is not [an] evidentiary proceeding.”
That “evidentiary” is used in § 405(b)(2) to modify “hearing”
rather than “rehearing” undermines the relevance of this
point. The amicus’s next offering — that the phrase “upon
the pleadings and transcript of the record” in sentence four
describes not only the basis for the district court’s judgment
6
but also the scope of the “rehearing” it may order — is, to put
it mildly, not the only reasonable reading of sentence four.
Having peeled away the amicus’s textual contentions, we
reach the structural argument at the core of his case:
If sentence four were construed as authorizing
remands for the taking of additional evidence,
then it would allow the Commissioner to
obtain through sentence four what he could not
obtain through sentence six. That, in turn,
would undermine the effectiveness of the
restrictions Congress placed on sentence six.
This reading would, in other words marshaled by the amicus,
render the restrictions in sentence six superfluous, see Corley
v. United States, 129 S. Ct. 1558, 1566–67 (2009), make the
statute self-defeating, see Citizens Bank of Md. v. Strumpf,
516 U.S. 16, 20 (1995), fail to “harmonize” the two sentences,
District of Columbia v. Bailey, 18 F.2d 367, 368 (D.C. Cir.
1927), and perversely give precedence to the general terms of
sentence four over the specific terms of sentence six, see
HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981). The
only way to avoid these pitfalls, he contends, is to hold
“sentence four allows for remands so that the Commissioner
can reconsider or clarify decisions based on the existing
record, whereas sentence six allows for reopening and
supplementation of the record.”
The Commissioner, of course, urges a reading of
sentence four that permits supplementing the record on
remand; * he responds to the amicus’s analysis by highlighting
*
We are not persuaded by the Commissioner’s argument for
deference to his interpretation of the statute, pursuant to Chevron
7
the procedural distinction between sentences four and six. As
this court has explained, “in a sentence-four remand, the
district court disposes of the action by a final judgment and
relinquishes jurisdiction, whereas in a sentence-six remand,
the district court retains jurisdiction over the action pending
further development by the agency.” Krishnan v. Barnhart,
328 F.3d 685, 691 (D.C. Cir. 2003); see also Melkonyan, 501
U.S. at 101–02 (“remand orders must either accompany a
final judgment affirming, modifying, or reversing the
administrative decision in accordance with sentence four, or
conform with the requirements outlined by Congress in
sentence six”). The significance of this observation for the
task at hand is not obvious. Although the district court did
reverse the Commissioner’s decision and remand the matter
“for further administrative proceedings,” that does not allay
our concern that the court sidestepped the limitations in
sentence six.
To the contrary, the amicus has advanced a reading of the
statute that avoids these structural problems: A remand for the
taking of additional evidence must satisfy the requirements in
sentence six. The restrictions in that sentence are there for a
reason, namely “to limit the power of district courts to order
remands for ‘new evidence’ in Social Security cases.”
Melkonyan, 501 U.S. at 100. The amicus’s reading would not
permit the court, by invoking sentence four, to evade these
restrictions on its power.
U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). Deference is
unwarranted because sentence four is not a provision administered
by the Commissioner; rather, it addresses the power of the district
court. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-50 (1990)
(delegation to Department of Labor to set substantive standards for
implementing statute “does not empower the Secretary to regulate
the scope of the judicial power vested by the statute”).
8
Neither the Supreme Court nor this has decided whether
the proceeding contemplated by a remand under sentence four
may include the taking of additional evidence, that is, where
the requirements of sentence six are not met. * We
nonetheless note the weight of authority, albeit not
controlling, lies against the amicus’s reading of the statute.
Three other circuits have come down in the Commissioner’s
favor, holding sentence four does permit a district court to
remand a case to the Commissioner to take additional
evidence. See Butts v. Barnhart, 388 F.3d 377, 385–86 (2d
Cir. 2004); Seavey v. Barnhart, 276 F.3d 1, 12–13 (1st Cir.
2001); Rosa v. Callahan, 168 F.3d 72, 83 & n.8 (2d Cir.
1999); Faucher v. HHS, 17 F.3d 171, 174–75 (6th Cir. 1994).
Those cases rest upon either the procedural distinction
between sentences four and six, see Seavey, 276 F.3d at 12–
13; Faucher, 17 F.3d at 174–75, or a quest for the additional
accuracy to be gained by supplementing the record, see Butts,
388 F.3d at 385–86; Rosa, 168 F.2d at 83. We find neither
rationale satisfactory, the former for the reason already stated
and the latter because it ignores other considerations, such as
finality and efficiency, the Congress might have valued in
drafting the statute. Still, the holdings of our sister circuits do
give us pause.
*
The Commissioner points us to a series of decisions in which he
claims we have remanded a case to him under sentence four with
instructions to supplement the record. See Simms v. Sullivan, 877
F.2d 1047, 1053 (1989); Poulin v. Bowen, 817 F.2d 865, 876
(1987); Narrol v. Heckler, 727 F.2d 1303, 1307 (1984); Diabo v.
Sec’y of Health, Educ. & Welfare, 627 F.2d 278, 281, 283 (1980).
Because we did not in those cases resolve any issue concerning the
power granted the district court by § 405(g), they neither help nor
bind us in the present inquiry. Cf. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 91 (1998) (“drive-by jurisdictional rulings ...
have no precedential effect”).
9
Sullivan v. Finkelstein, 496 U.S. 617, 619–24 (1990), is
also cause for hesitation. In that case the Commissioner had
denied a widow disability benefits, the district court had
reversed that ruling and remanded the case for further
findings of fact, and the Third Circuit had dismissed the
Commissioner’s appeal on the ground the remand order was
not appealable. 496 U.S. at 621–22. The Supreme Court
reversed, holding the remand order was appealable because
the district court had entered a judgment, as contemplated by
sentence four. Id. at 623–26. In so doing, the Court rejected
the claimant’s argument that the district court had necessarily
ordered a remand under sentence six because it had stated in
the order “the evidence on the record was insufficient to
support the Secretary's conclusion and ... further factfinding
regarding respondent’s ailment was necessary.” Id. at 626.
Therefore, as the Commissioner argues here, the Court seems
“tacitly [to have] recognized that a sentence four remand may
involve the introduction of additional evidence on rehearing.”
To similar effect, in Shalala v. Schaefer, 509 U.S. 292, 299
(1993), the Court expressly described as coming under
sentence four a remand in an earlier case, Sullivan v. Hudson,
490 U.S. 877 (1989), that had called for reopening the record.
Happily, in the end we need not choose between these
precedents and the amicus’s reading of the statute, for wisely
he has also proposed an alternative course of action: He
argues the district court’s judgment should be vacated
because, in failing to recognize it could have remanded the
case with an order to pay Jones benefits, rather than to rehear
the matter, the court misapprehended the extent of its power.
That is, the district court denied Jones’s motion for
reconsideration in the mistaken belief Jones had “already
obtained the maximum relief — reversal and remand — that
the Court is authorized to award.”
10
Under our caselaw, when a claimant makes out his prima
facie case and the agency fails to carry its burden of showing
the claimant could perform “other work,” the district court
may remand the case to the Commissioner with instructions to
award the claimant benefits. See Meneses v. Sec’y of Health,
Educ. & Welfare, 442 F.2d 803, 809 (1971); cf. Krishnan, 328
F.3d at 696 (inappropriate for court to award benefits where
claimant could not show prima facie case). Here, of course, it
is undisputed Jones made out a prima facie case and that, on
the extant administrative record, the Commissioner could not
meet his burden of proof. The district court therefore could
have, if warranted by the record, afforded Jones additional
relief.
The Commissioner defends the district court’s contrary
conclusion on the ground that “the record in its current state
does not show that Jones is clearly entitled to Social Security
benefits.” See Faucher, 17 F.3d at 176 (court cannot award
disability benefits unless the record demonstrates claimant’s
“clear entitlement” to them). Although the Commissioner
may be correct, the sufficiency of the record evidence is for
the district court to determine in the first instance. In this
case, however, the district court instead rested upon its
antecedent but mistaken belief that, even if Jones was right on
the merits, a remand for rehearing was the most the court
could order. We therefore vacate the judgment and remand
this matter for the district court to determine the appropriate
remedy in the light of the full extent of its power under circuit
law.
11
III. Conclusion
Because the district court misunderstood the full reach of
its remedial authority, we vacate the judgment and remand
this matter to the district court to consider the issue anew.
So ordered.