United States Court of Appeals
For the First Circuit
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No. 01-1293
EDWARD C. FREEMAN,
Plaintiff, Appellee,
v.
JO ANNE B. BARNHART,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
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Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Young,* District Judge.
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Joseph E. Dunn, Assistant Regional Counsel, Social Security
Administration, with whom Jay P. McCloskey, United States Attorney,
James M. Moore, Assistant United States Attorney, and Robert J. Triba,
Regional Chief Counsel, Social Security Administration, were on brief
for appellant.
Daniel W. Emery for appellee.
* Of the District of Massachusetts, sitting by designation.
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December 27, 2001
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LYNCH, Circuit Judge. This case is one of a pair, both
originating from the District of Maine and both presenting the
same question to this court: when a federal court rules that a
Social Security Administrative Law Judge ("ALJ") has erred,
under what circumstances may the court remand the case to the
Commissioner with instructions to pay benefits, rather than
remand to the Commissioner for further proceedings? See Seavey
v. Barnhart, No. 01-1202 (1st Cir. 2001). We vacate the
district court's order to pay benefits and, applying the
principle articulated in Seavey, hold that, in this instance, a
remand with instructions for further proceedings was the
appropriate remedy.1
I.
1 In the district court proceedings, the defendant named
was Kenneth S. Apfel, then Commissioner of Social Security.
Freeman v. Apfel, No. 00-120-B, 2000 WL 1781830 (D. Me. Dec. 4,
2000). 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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In June 1998, Edward Freeman applied for benefits under
the Social Security disability benefits and the Supplemental
Security Income programs, claiming disability due to
gastroesophageal reflux disease. Freeman received a hearing on
his claim before a Social Security ALJ on July 15, 1999.
When considering applications, the Social Security
Administration employs a five step process to determine if an
individual is disabled within the meaning of the Social Security
Act; all five steps are not applied to every applicant, as the
determination may be concluded at any step along the process.
20 C.F.R. §§ 404.1520, 416.920 (2001). The applicant has the
burden of production and proof at the first four steps of the
process. If the applicant has met his or her burden at the
first four steps, 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. Secretary of Health & Human Servs., 670 F.2d 374, 375 (1st
Cir. 1982).
At the ALJ hearing, Freeman presented evidence of his
reflux disease and evidence that he has an anxiety disorder with
depressed mood. This sufficed to meet his burden under the
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first four steps of the process. At Step 5, the Commissioner
presented the testimony of a vocational expert, who testified
that Freeman had skills from his past work as a plumber and pipe
fitter that could be transferred to other jobs. The expert also
testified that someone with Freeman's age, educational and
vocational background, and physical and psychological
limitations could still perform many jobs, and he specifically
cited examples.
The ALJ in her decision stated that Freeman was not
disabled because he could still perform certain jobs. Rather
than citing any of the jobs that the vocational expert testified
that Freeman could perform, however, the ALJ supported her
determination by citing three jobs mentioned by the expert that
would utilize skills from Freeman's prior work. There was no
evidence that Freeman, given his impairments, could perform
these jobs. In fact, it appears that he could not perform such
jobs, as they required working with the public, which the ALJ
had found he was limited in doing due to his anxiety and
depression. The ALJ decision was therefore internally
inconsistent and not supported by the evidence.
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After the Social Security Appeals Council declined to
review his case, Freeman petitioned the federal district court.
The Commissioner conceded that the ALJ had erred and moved for
a remand for further proceedings. The magistrate judge
recommended that the district court deny the Commissioner's
motion and, instead, remand the case with instructions to pay
benefits. Freeman v. Apfel, No. 00-120-B, 2000 WL 1781830, at
*4 (D. Me. Dec. 4, 2000). The magistrate cited Social Security
Ruling 96-9p, 61 Fed. Reg. 34,478 (July 2, 1996), which requires
ALJs to cite examples of jobs that an applicant could perform
whenever there is more than a slight impact on the applicant's
ability to perform the full range of sedentary work. Freeman,
2000 WL 1781830, at *3. The Commissioner disputes the
applicability of this ruling.
The decision to order payment without further
proceedings rested primarily on the notion that the Commissioner
bears the burden of proof at Step 5 and that, as the magistrate
had said in prior recommendations, "the [C]ommissioner is not
entitled to multiple attempts to get things right" at this stage
of the process. Id. The district court adopted the
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magistrate's opinion, Freeman v. Apfel, No. 00-0120-B-S (D. Me.
Dec. 18, 2000), and this appeal followed.
II.
The Commissioner's position is laid out in our decision
in Seavey, slip op. at 8-9. Our review of a district court's
judgment on a Social Security appeal is de novo. Id. at 11-13.
The Commissioner met his burden to come forward with
evidence in this case by introducing the testimony of a
vocational expert. The argument here centers on how the ALJ
weighed that evidence. We do not know whether the ALJ had a
reason for not citing the unskilled jobs mentioned by the
vocational expert as jobs that Freeman could still perform, or
whether reference to the wrong set of jobs was simply an
unintentional mistake. The ALJ's decision was in error because
it was not supported by substantial evidence, 42 U.S.C. § 405(g)
(1994) -- specifically, because the vocational expert's
testimony appears to contradict pertinent findings by the ALJ.
However, an order to pay benefits is not appropriate
here because, based on the record, it is not clear that Freeman
was entitled to benefits. See Seavey, slip. op. at 17. If
anything, the record tends to show that Freeman was not entitled
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to benefits, since the vocational expert testified that there
were still many jobs that someone with his residual functional
capacity could perform. Still, the ALJ did not discuss the
pertinent expert testimony or Freeman's challenges to it. A
remand is the proper remedy here because it would allow the
Commissioner to fulfill his role of resolving conflicting
evidence, a task which is not ours to perform. Id. at 15;
Walker v. Bowen, 834 F.2d 635, 639-40 (7th Cir. 1987).
In its posture before the district court, this case
presented a simple issue of the federal court's authority under
sentence four of 42 U.S.C. § 405(g) to remand a case after
entering a judgment reversing the Commissioner's decision due to
error. Under those circumstances, the Commissioner may have
been able to correct the error without undertaking additional
evidentiary proceedings. However, in a letter submitted to this
court after oral argument pursuant to Federal Rule of Appellate
Procedure 28(j), the Commissioner stated that further
development of the record is necessary for two reasons: to
comply with a new Social Security Ruling clarifying the ALJ's
duty to resolve any conflicts between the vocational expert's
testimony and the definitions in the Dictionary of Occupational
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Titles published by the Department of Labor; and to consider new
evidence that Freeman was working for some period of time during
1999 and 2000.
Given the Commissioner's intent to introduce new
evidence upon remand, this case now also invokes our authority
under sentence six of § 405(g), which states that a reviewing
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." 42 U.S.C. § 405(g).
Evidence that the applicant was working during the claimed
period of disability is unquestionably relevant, as the first
step of the five-step disability determination process asks
whether the applicant is engaged in substantial gainful work
activity. 20 C.F.R. §§ 404.1520, 416.920 (2001). As the
Commissioner has only recently obtained this information and
could not have obtained it earlier, she has satisfied the "good
cause" requirement of sentence six.2 In this case, there is no
2 Indeed, it was Freeman's responsibility to notify the
Commissioner that he was working while his application was
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risk of unfairness to Freeman by allowing further proceedings.3
We note that normally sentence four remands are post-
judgment remands (in that the reviewing court has entered a
judgment "affirming, modifying, or reversing the decision of the
Commissioner," 42 U.S.C. § 405(g)), and sentence six remands are
pre-judgment remands (entered when the reviewing court has not
ruled on the correctness of the Commissioner's decision, but
good cause exists for remanding for further evidentiary
proceedings). Faucher v. Sec'y of Health & Human Servs., 17
F.3d 171, 175 (6th Cir. 1994). We could order a remand for
further proceedings under either sentence. In order to preserve
Freeman's rights if he is ultimately a prevailing party, we will
treat this as a sentence six remand, under which the district
court retains jurisdiction until the remand proceedings are
complete and the Commissioner files modified findings of facts
pending. 20 C.F.R. §§ 404.452, 416.704(a)(4), 416.708(b) (2001).
3 Moreover, even if the ALJ had granted benefits to
Freeman at the original hearing, the Commissioner would now be
entitled to a new hearing on whether Freeman's benefits should
be prospectively or retrospectively terminated or reduced due to
his 1999 and 2000 work activities. 20 C.F.R. ch. III, §§
404.401a, 404.502, 404.1590, 416.1100 (2001).
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and a modified decision, 42 U.S.C. § 405(g). If Freeman is then
a prevailing party, the court may consider any properly filed
application for fees under the Equal Access to Justice Act.
Shalala v. Schaefer, 509 U.S. 292, 299-300 (1993).
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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