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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2003 Decided May 16, 2003
No. 01-5307
NARAYANAN KRISHNAN, FOR NARAYANAN DEVIPRASAD,
APPELLANT
v.
JO ANNE B. BARNHART, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 98cv02059)
Paul Schiff Berman, appointed by the court, argued the
cause and filed the briefs for appellant.
Fred E. Haynes, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, R. Craig Lawrence, Mark E. Nagle,
Kenneth Leonard Wainstein, Doris D. Coles–Huff and Paul
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Mussenden, Assistant U.S. Attorneys, and Daniel Balsam,
Attorney, Social Security Administration.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The underlying issue in this case is
whether a non-U.S. citizen applying for disability benefits
under the Social Security Act has satisfied an exception to the
general rule that alien beneficiaries cannot receive benefits if
they have resided outside the United States for six consecu-
tive calendar months, 42 U.S.C. §§ 402(t)(1)(A); 402(t)(4)(A–
B) (2000). As the case comes to this court on appeal from a
judgment affirming the denial of benefits following a remand
to the Social Security Administration (‘‘SSA’’), it involves an
unauthorized remand by the district court to an agency that
failed to fulfill its regulatory responsibilities to assist the
applicant. Notwithstanding these procedural errors, because
the claimant has failed to make a prima facie showing that he
was entitled to receive benefits, we affirm the judgment
affirming the agency’s denial of benefits.
I.
The qualification for benefits at issue revolves around the
claimant’s assertion that he had worked the requisite time in
qualified employment to come within an exception to the
general ban on alien beneficiaries receiving benefits. Title II
of the Social Security Act, 42 U.S.C. § 401 et seq., provides
monthly insurance benefits to ‘‘qualified’’ individuals who the
SSA determines are unable to work because of a disability.
See also id. at § 423. Whether a person ‘‘qualifies’’ for
benefits depends largely on whether he has acquired the
requisite number of ‘‘quarters of coverage,’’ or ‘‘QCs.’’ See
id. at § 413; 20 C.F.R. § 404.101(a) (2002). For calendar
years since 1978, the number of QCs that a worker earns is
based on a comparison of his total ‘‘covered’’ earnings to the
amount designated in SSA’s regulations as sufficient to quali-
fy for one QC during that year. 42 U.S.C. § 413; 20 C.F.R.
3
§§ 404.140(c), 404.143(a); see also 20 C.F.R. Pt. 404, Subpt.
B, App. Thus, a worker earns one QC if his total covered
earnings equal the amount designated in the regulations as
sufficient to qualify for one QC during that year, and a
worker receives two QCs by earning twice the amount speci-
fied in the regulations for a single QC. 20 C.F.R.
§ 404.143(a). A worker cannot earn more than four QCs in
any given year, id., but because the system is based on total
annual earnings, an individual need not work the entire year
to earn four QCs. For instance, a person could work for one
quarter of the calendar year and earn four QCs if his covered
earnings during that period were four times the amount
required by regulation for one QC. Similarly, a person could
earn two QCs if his covered earnings were twice the amount
required for one QC whether he worked for three days or half
of the year or for the full calendar year.
Importantly, only earnings that are ‘‘covered’’ under social
security count toward the calculation of a worker’s QCs. See
id. at §§ 404.1001, 404.1012. Work performed within the
United States is generally covered, subject to a few excep-
tions. Id. at § 404.1004. The earnings of students who work
as employees of the school they are attending, for example,
are not ‘‘covered’’ under social security. Id. at § 404.1028.
Likewise, on-campus work performed by foreign students
attending school in the United States is excluded from em-
ployment that is covered for purposes of calculating QCs. Id.
at § 404.1036.
Additional provisions of the Social Security Act apply to
non-U.S. citizens attempting to receive disability insurance
benefits. As pertinent here, § 402(t) of the Act provides that
alien beneficiaries cannot receive benefits for any month that
occurs after they have been outside the United States for six
consecutive calendar months. 42 U.S.C. § 402(t)(1)(A); see
also 20 C.F.R. § 404.460(a). This so-called ‘‘non-payment
provision’’ has two relevant exceptions: An alien beneficiary
who has accrued at least forty QCs, or who has resided in the
United States for a period totaling at least ten years, is
eligible for benefits regardless of his absence from the United
States. 42 U.S.C. § 402(t)(4)(A–B); see also 20 C.F.R.
4
§ 404.460(b)(2)(I). These two exceptions to the nonpayment
provision do not apply, however, if the beneficiary is a citizen
of a foreign country that has a social insurance or pension
program of general application, 42 U.S.C. § 402(t)(2), or if the
beneficiary resides in a foreign country to which the mailing
of U.S. government benefits is prohibited, 42 U.S.C.
§ 402(t)(10).
An individual who is certified as disabled by the SSA,
pursuant to 42 U.S.C. § 421, must file an application to
receive benefits. 20 C.F.R. § 404.603. As part of the appli-
cation, the claimant must provide the SSA with evidence of
eligibility. Id. at § 404.704. By definition, evidence is ‘‘any
record, document, or signed statement that helps to show
whether [the claimant is] eligible for benefits.’’ Id. at
§ 404.702. With regard to proof of a claimant’s earnings,
however, the only conclusive evidence is an official statement
of earnings provided by the SSA, 20 C.F.R. § 404.803, which
maintains an earnings record for each person whose employ-
ment is covered under the social security program. 42 U.S.C.
§ 405(c)(2)(A). (If there is an error in the earnings record, it
may be corrected pursuant to 20 C.F.R. § 404.822.) A claim-
ant, or his legal representative, can obtain, on request, a copy
of the claimant’s official SSA earnings statement from the
agency free of charge. See 42 U.S.C. §§ 405(c)(2)(a), 1320b–
13(a)(3)(A–C); 20 C.F.R. §§ 404.810(a), 422.125(b).
II.
Narayanan Krishnan appeals on behalf of his brother and
next friend, Narayanan Deviprasad,1 the district court’s affir-
mance of SSA’s denial of disability benefits to the claimant on
the basis of his failure to meet an exception to the general
rule that alien beneficiaries cannot receive benefits if they
have resided outside the United States for six consecutive
1 Throughout the administrative and judicial proceedings, Devi-
prasad and Krishnan Narayanan have been referred to as Narayan-
an Deviprasad and Narayanan Krishnan, respectively, inverting
their given first names and surname. In this opinion we will refer
to them as claimant and brother, respectively.
5
calendar months. 42 U.S.C. §§ 402(t)(1)(A); 402(t)(4)(A–B).
The brother also appeals the denial of his motion to vacate its
earlier remand allowing SSA to supplement the administra-
tive record on which it based its eligibility decision. Through
appointed counsel,2 the brother urges the court not only to
reverse the judgment of the district court, but also to provide
equitable relief in the form of disability benefits to the
claimant. We hold that the district court erred in remanding
the case to SSA, and that SSA violated its regulations. These
errors, however, are insufficient to overcome the fact that the
original administrative record demonstrates the claimant’s
ineligibility for benefits; hence, the cases on which his broth-
er relies for equitable relief are inapposite.
A.
The claimant is a citizen of India who came to the United
States on August 26, 1981 to pursue a masters degree at
Worcester Polytechnic Institute (‘‘Polytechnic’’). From Sep-
tember 1981 through May 1983, when he graduated, the
claimant worked as a teaching assistant at Polytechnic. Fol-
lowing graduation, he worked in the United States as a
computer software engineer. In May 1986, the claimant was
diagnosed with paranoid schizophrenia. Over the next five
years, he traveled to India periodically for psychiatric treat-
ment and evaluation, but he suffered relapses each time he
returned to the United States. Since April 25, 1991, the
claimant has been living in India continuously, where he
remains in the care of his brother.
The claimant filed an application for social security disabili-
ty insurance benefits on May 22, 1993, on the basis of
disability stemming from schizophrenia. SSA’s psychiatrist
agreed that the claimant suffers from paranoid schizophrenia,
and determined that his disability began April 2, 1991. By a
memorandum of February 7, 1994, SSA advised the American
Consulate in Bombay of its disability determination, and
requested that the claimant’s physician in India and his
2 The court expresses its appreciation for the able assistance
provided by counsel appointed by this court.
6
brother complete the forms necessary to process the benefits
claim. The American Consulate responded on April 14, 1994,
by submitting paperwork to the SSA that showed that the
claimant’s condition is permanent and deteriorating; that he
is a resident of India; and that he had been living outside the
United States since April 25, 1991, had no plans to return to
the United States, and had authorized his brother to serve as
his payee.
On October 11, 1994, the SSA informed the claimant that
his disability claim had been awarded, effective February
1992, but that payments to him had been suspended, pursuant
to 42 U.S.C. § 402(t)(4), because he had been residing outside
the United States for more than six months. The claimant
requested reconsideration of the SSA’s decision, asserting
that he had earned forty-two QCs. To support his claim, the
claimant attached to his request a handwritten chart with his
place of work and earnings by year. In a series of adminis-
trative appeals, SSA rejected the claim, failing on three
separate occasions to respond directly to the claimant’s asser-
tion of forty-two QCs. First, by letter dated February 21,
1995, the Director of SSA’s Office of Disability and Interna-
tional Operations denied reconsideration because the claimant
had not satisfied any of the exceptions to the general rule
that benefit payments are not made to aliens who have lived
outside the United States for more than six months. Second,
an Administrative Law Judge (‘‘ALJ’’), on September 5, 1996,
denied an appeal on the grounds that the claimant had not
lived in the United States for the last six months and did not
qualify under any exceptions to the residency requirement.
Third, in February 1998, the Appeals Council denied a re-
quest for review on the same grounds, rendering the ALJ’s
decision the final decision of SSA. In the latter two appeals,
the claimant had requested counsel, but none appeared on his
behalf.
The brother of the claimant filed suit on August 28, 1998.
The district court appointed counsel for the brother, and the
parties filed cross-motions for summary judgment. The
brother argued that because the claimant had more than
forty QCs, he qualified under an exception to the general bar
7
against paying benefits to alien beneficiaries. SSA countered
that the claimant had not accrued forty QCs, and submitted,
as evidence, computerized extracts of his work history that
had not been included in the administrative record, purport-
ing to show that the claimant had accrued only thirty QCs.
At a hearing, the brother argued that he was entitled to a
judgment on the then-existing administrative record, while
SSA argued that the case should be remanded for ‘‘good
cause’’ so that it could supplement the record with the
certified extracts of the claimant’s work history. The brother
responded that there was no good cause for SSA’s failure to
include the earnings history in the original administrative
record. On September 17, 1999, over the brother’s objection,
the district court ruled that ‘‘the new evidence counsels in
favor of additional agency proceedings,’’ and because there
was ‘‘good cause shown,’’ remanded the case ‘‘pursuant to
sentence six of Section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).’’ Krishnan v. Apfel, No. 98–CV–2059 at 2
(D.D.C. Sept. 17, 1999) (emphasis added).
On remand, an ALJ held a hearing on March 27, 2000, at
which the brother, who was represented by counsel, submit-
ted documents, including pay stubs from the claimant’s work
at Polytechnic, purporting to show that the claimant had
earned forty-two QCs. SSA submitted the computerized
employment extracts it had first brought to the district court,
and argued that because social security taxes were not with-
held from money paid to the claimant for his work at Poly-
technic, he had earned less than forty QCs. By decision of
April 18, 2000, the ALJ agreed with SSA, finding that the
claimant had earned less than forty QCs because ‘‘[o]n cam-
pus work which is done by [foreign] students is excluded from
employment (20 C.F.R. 404.1036(a)).’’
The district court affirmed SSA’s remand decision. Krish-
nan v. Massanari, 158 F. Supp. 2d 67 (D.D.C. 2001). Reject-
ing the brother’s position that he was entitled to judgment
based on the original administrative record, the court noted
that the administrative record had not included a printout of
the claimant’s earnings record – ‘‘a standard exhibit in the
administrative record of nearly every disability case.’’ Id. at
8
71. Upon reviewing the supplemented administrative record
on remand, the court found that ‘‘substantial evidence’’ sup-
ported the ALJ’s decision that the claimant had not accrued
forty QCs. Accordingly, the district court denied the broth-
er’s motion for summary judgment and motion to vacate the
earlier remand.
B.
On appeal, the brother renews his contention that the
claimant qualified for benefits under an exception to the non-
payment provision for alien beneficiaries because the claimant
had earned more than forty QCs, and contends that the
district court’s remand under sentence six was unlawful and
that he is entitled to benefits based on the original adminis-
trative record.
Section 405(g), which governs judicial review of final SSA
decisions, authorizes only two types of remands: those pursu-
ant to sentence four and those pursuant to sentence six.
Melkonyan v. Sullivan, 501 U.S. 89, 99–100 (1991). Under
sentence four, a district court may remand for further pro-
ceedings in conjunction with ‘‘a judgment affirming, modify-
ing, or reversing the decision of the Commissioner.’’ 42
U.S.C. § 405(g). A sentence-six remand is ‘‘entirely differ-
ent.’’ Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). The
district court ‘‘does not affirm, modify, or reverse the [Com-
missioner’s] decision; it does not rule in any way as to the
correctness of the administrative determination.’’ Melko-
nyan, 501 U.S. at 98. Rather, the district court remands
either because (1) the Commissioner requested a remand
before filing his answer, or (2) there is ‘‘new evidence which is
material and [ ] there is good cause for the failure to incorpo-
rate such evidence into the record in a prior proceeding.’’ 42
U.S.C. § 405(g); see also Shalala v. Schaefer, 509 U.S. 292,
297 n.2 (1993). The ‘‘principal feature’’ that distinguishes the
two types of remands is that 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
9
further development by the agency. Id. at 297, 299. A
sentence-four remand is therefore appealable, Finkelstein,
496 U.S. at 624–25, while a sentence-six remand is considered
interlocutory and thus non-appealable. Accordingly, in a
sentence-six remand, there is no final judgment until SSA
returns to the district court to file SSA’s ‘‘additional or
modified findings of fact and decision,’’ 42 U.S.C. § 405(g),
and the district court enters a judgment. Melkonyan, 501
U.S. at 98.
The brother and SSA are in agreement on appeal that the
district court erred when it remanded his case under sentence
six of 42 U.S.C. § 405(g) without finding the statutory prereq-
uisites. On de novo review, Herbert v. Nat’l Acad. of Sci., 974
F.2d 192, 197 (D.C. Cir. 1992); Cuddy v. Carmen, 762 F.2d
119, 123 (D.C. Cir. 1985), we agree. Neither of the conditions
for a sentence-six remand were met. SSA did not file a
motion to remand before answering the complaint, and nei-
ther the district court nor the parties pointed to any ‘‘new’’
evidence omitted from the administrative record for ‘‘good
cause’’ shown. Evidence is ‘‘new’’ only if it was not ‘‘in
existence or available TTT at [the] time of the administrative
proceeding.’’ Finkelstein, 496 U.S. at 626; see also Melko-
nyan, 501 U.S. at 98. Here, the evidence to be added on
remand – SSA’s computerized extracts of the claimant’s earn-
ings and any pay stubs or other information in the claimant’s
possession – had been available from the beginning of the
administrative proceedings. The district court’s remand un-
der sentence six was therefore erroneous.
Nor can we sanitize the district court’s error, as SSA
contends, by holding that the district court could have en-
tered a sentence-four remand. The district court made no
substantive ruling on the correctness of SSA’s decision, which
is a necessary prerequisite to a sentence-four remand, Melko-
nyan, 501 U.S. at 98–101. Neither did the court relinquish
its jurisdiction over the litigation. Its order stated that the
court ‘‘maintains jurisdiction over this action pending comple-
tion of the additional agency proceedings,’’ and directed the
parties to appear for a status conference by a date certain.
To conclude that despite the plain language of the court’s
10
order, the remand nevertheless could have been entered
pursuant to sentence four, not only threatens to render the
statutory language of that sentence meaningless, but also
threatens to create a judicial quagmire – for a sentence-four
remand might have left the district court without jurisdiction
to enter the judgment now on appeal.
SSA’s reliance on Richmond v. Chater, 94 F.3d 263 (7th
Cir. 1996), to overcome the jurisdictional implications of a
sentence-four remand, is misplaced; the only issue in Rich-
mond was whether the appellate court had jurisdiction to
reach the merits of the appeal, id. at 265, and the court was
not presented with a remand under either sentence four or
sentence six. In Richmond, the district court had remanded
a benefits claim case to SSA without indicating whether the
remand was issued under sentence four or six, and without
entering a final judgment ‘‘affirming, modifying, or reversing
the decision of the Commissioner,’’ 42 U.S.C. § 405(g). Id.
The district court later modified the remand order to a final
order to allow the claimant’s counsel to apply for attorney
fees. Id. at 266. Still later, the district court vacated the
final order so that it could retain jurisdiction over the case
after remand. Id. The Seventh Circuit stated that the
district court could not issue a final judgment and retain
jurisdiction, and that if the district court had relinquished
jurisdiction, the appellate court did not have jurisdiction over
the appeal. Id. at 267. The Seventh Circuit concluded that
the district court had intended to retain jurisdiction over the
case and, even though erroneous, that intended jurisdiction
was a sufficient basis for appellate review. Id. at 269–70.
Unlike the instant case, the Seventh Circuit did not need to
consider whether to construe a sentence-six remand under
sentence four (or vice versa); rather, it had to untangle the
circuitous district court orders to determine whether it had
jurisdiction. Like the instant case, however, SSA accepted an
ambiguous remand, and the court in Richmond chastised SSA
for doing so and not challenging the inappropriate jurisdic-
tional decisions of the district court. Id. at 269. Accepting
SSA’s suggestion that this court deem the remand at issue to
be a remand under sentence four would create the kind of
11
convoluted outcome that was criticized by the court in Rich-
mond.
In light of the Supreme Court’s instruction that there are
‘‘sharp distinction[s]’’ between sentence-four and sentence-six
remands, Shalala, 509 U.S. at 301, and that the two types of
remands are not interchangeable, we decline to interpret the
district court’s remand to be a remand under sentence four.
Shalala, 509 U.S. at 301; Melkonyan, 501 U.S. at 98; Finkel-
stein, 496 U.S. at 626; Seavey, 276 F.3d at 12 (1st Cir. 2001);
Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000); Istre v.
Apfel, 208 F.3d 517, 519–20 (5th Cir. 2000); Raitport v.
Callahan, 183 F.3d 101, 104–05 (2d Cir. 1999); Nguyen v.
Shalala, 43 F.3d 1400, 1403 (10th Cir. 1994); Pettyjohn v.
Shalala, 23 F.3d 1572, 1574 (10th Cir. 1994). The Supreme
Court has rejected, in light of clear evidence of legislative
intent, the notion that Congress intended the district court to
retain inherent power to remand SSA claims determinations
for new evidence, Melkonyan, 501 U.S. at 101. In Finkel-
stein, the Court held that § 405(g) did not expand ‘‘the
district court’s equitable powers’’ but instead restricted them,
496 U.S. at 629. Hence, the failure of a district court to
properly remand under sentence four or six of § 405(g)
cannot be cured by reference to a larger authority to remand.
Shalala, 509 U.S. at 296; Melkonyan, 501 U.S. at 101; Istre,
208 F.3d at 520–21; Raitport, 183 F.3d at 105.
Accordingly, we hold that the district court erred in re-
manding the case to SSA pursuant to sentence six and that
there is no alternative ground on which to conclude that the
district court’s remand was proper.
C.
The question remains what consequences should follow.
Although the parties appear to agree on appeal that SSA
erred by failing to ensure from the beginning that there was
a complete administrative record containing the claimant’s
computerized earnings record, and that SSA also erred by
failing to provide any significant explanation for its denial of
benefits prior to the remand, SSA maintains that the brother
12
is entitled to no relief because there is no evidence that he
could refute SSA’s reasons for denying the claimant’s claim.
The brother contends first, that because the district court’s
decision to deny benefits was based on information gathered
during an unlawful remand, this court should reverse the
district court and compel SSA to provide benefits because, in
his view, the evidence in the original administrative record
demonstrates the claimant’s entitlement to benefits. Alterna-
tively, he contends second, that because the SSA’s failure to
follow its regulations prejudiced the claimant, the court
should provide equitable relief.
To conclude that the brother is entitled to relief under his
first contention, the court must be able to find that there was
substantial evidence in the original administrative record that
the claimant qualified for an exception to the non-payment
provision. Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir.
1987). Substantial evidence is ‘‘more than a mere scintilla’’
and is ‘‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’’ Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation omitted). Because
it is undisputed that, when the claimant applied for benefits,
he had lived in the United States for less than ten years and
was therefore ineligible for the ten-year residency exception
to the non-payment provision, the issue is whether the record
contained sufficient proof that he had earned forty QCs. See
42 U.S.C. §§ 402(t)(1)(A); 402(t)(4)(A–B).
The brother relies solely on the handwritten chart submit-
ted to SSA by the claimant for the proposition that SSA had
uncontested evidence that the claimant had earned more than
the forty QCs necessary to bypass the non-payment provision.
Id. at § 402(t)(4)(A). On its face, however, the chart includes
less than forty QCs of ‘‘covered’’ employment. The handwrit-
ten chart lists, for periods from September 1981 through
April 1991, the claimant’s place of work, approximate earn-
ings, and the number of ‘‘social security credits’’ he earned.
Assuming that the claimant used the phrase ‘‘social security
credits’’ to mean QCs, as the parties presume, the chart
purports to show that he earned forty-two QCs. Id. The
chart states that the claimant worked at Polytechnic from
13
September 1981 through May 1983, the same period during
which he was a student at Polytechnic. Under 20 C.F.R.
§ 404.1028, the earnings of students who work as employees
of the school they are attending are not ‘‘covered’’ under
social security. Similarly, under 20 C.F.R. § 404.1036, on-
campus work performed by foreign students attending school
in the United States is not ‘‘covered’’ under social security.
The record, including the claimant’s letter of November 8,
1994, to SSA stating that he had been admitted to Polytechnic
and awarded an assistantship in June 1981, which he accept-
ed, is clear that the claimant was a student while working at
Polytechnic.
Once the period of time the claimant worked at Polytechnic
is removed from consideration, the remaining periods of
employment noted on the chart are from September 1983
through April 1991. A person can earn, at most, four QCs
per calendar year. 20 C.F.R. § 404.143(a). It follows that
from September 1983 through April 1991 the claimant could
not have earned more than thirty-six QCs. Thus, even
without the SSA’s certified earnings record, which showed
that no FICA had been withheld from 1981 to 1983 and
became part of the administrative record only upon the
unlawful remand, there is substantial evidence to show that
the claimant had not earned the forty QCs required to qualify
for benefits. To that extent, the district court’s reliance on
the remanded information was harmless because the original
administrative record demonstrated that the claimant was
ineligible for benefits.
As to the brother’s second contention, he seeks an equitable
award of benefits based on SSA errors throughout the admin-
istrative process that prejudiced the claimant. Specifically,
the brother points to SSA’s failure during three separate
administrative appeals to advise the claimant that his chart
was insufficient evidence of his earnings; counsel him on how
to obtain a statement of his earnings from SSA; request
additional information from him; produce evidence that
showed he was ineligible for benefits; or state that the denial
of his claim was based on the determination that he had not
accrued forty QCs. The SSA concedes its errors, but con-
14
tends that they were harmless because the brother has never
disputed that the claimant was a student at Polytechnic when
he worked there and on remand did not present evidence to
prove that the claimant had earned forty QCs.
SSA’s regulations provide that the only conclusive evidence
of a claimant’s earnings is a statement of earnings provided
by SSA. 20 C.F.R. § 404.803. SSA regulations, however,
also provide that SSA may consider, as evidence, ‘‘any record,
document, or signed statement that helps to show whether
[the claimant is] eligible for benefits.’’ Id. at § 404.702.
Although the claimant is responsible for providing evidence of
eligibility, SSA regulations state that it will ‘‘advise [the
claimant] what [evidence] is needed and how to get it and TTT
consider any evidence [the claimant provides].’’ Id. at
§ 404.704. If the evidence the claimant provides ‘‘is not
convincing by itself,’’ SSA is required to ‘‘ask [the claimant]
for additional evidence.’’ Id. at § 404.709.
The claimant submitted a handwritten chart of his earnings
to demonstrate that he had accrued more than forty QCs.
Although insufficient evidence of his earnings, see id. at
§ 404.803, the chart nevertheless qualified as reviewable evi-
dence under the broad definition of ‘‘evidence’’ in § 404.702.
Yet at no point during the three administrative appeals did
SSA inform the claimant that the denial of his claim was
based on its determination that he had not earned forty QCs;
advise him that the chart was insufficient evidence of his
earnings, id. at § 404.704; counsel him on how to obtain a
conclusive statement of earnings from the SSA, id.; or ask
him for additional information. Id. at § 404.709. At most,
the administrative record as supplemented on remand indi-
cates that the claimant submitted W–2 forms in response to a
SSA letter of May 5, 1993, which itself is not part of the
record; another handwritten note by an SSA official that is
referenced in SSA’s brief is illegible. Nor did SSA submit
any contradictory evidence – not even the claimant’s official
earnings record, which the district court noted is ‘‘a standard
exhibit in the administrative record of nearly every disability
case.’’ Krishnan, 158 F. Supp. 2d at 71.
15
The glaring nature of SSA’s regulatory violations is under-
scored by decisions of the Supreme Court as well as the
circuit courts of appeal instructing that in cases involving
disability benefits SSA has an affirmative duty to develop a
complete administrative record, including ‘‘arguments both
for and against granting benefits.’’ Sims v. Apfel, 530 U.S.
103, 111 (2000), Richardson, 402 U.S. at 400–01; Poulin v.
Bowen, 817 F.2d 865, 870 (D.C. Cir. 1987); Narrol v. Heckler,
727 F.2d 1303, 1306 (D.C. Cir. 1984); Diabo v. Sec’y Health,
Educ. & Welfare, 627 F.2d 278, 281–82 (D.C. Cir. 1980).
This duty is heightened if ‘‘the claimant is unrepresented by
an attorney,’’ Poulin, 817 F.2d at 870; Narrol, 727 F.2d at
1306; Diabo, 627 F.2d at 282, has limited fluency in English,
Poulin, 817 F.2d at 870, or suffers from mental illness. Id. at
870–71. Thus, in Poulin, the court stated that where a
claimant was not legally represented before the ALJ, was not
a native speaker, and suffered from schizophrenia, the ALJ’s
‘‘duty of record-development most certainly rises to its ze-
nith.’’ Id. at 871. Other circuits have similarly so held. See,
e.g., Seavey v. Barnhart, 276 F.3d 1, 8 (1st Cir. 2001);
Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
The claimant here is the Poulin case writ large. Not only
was he not represented by legal counsel at any level of SSA
review, he is not a native English speaker, lives in a far
distant country, lacks the financial resources to return to this
country, and suffers from a serious, progressive mental ill-
ness. Under the circumstances, SSA’s failure to develop a
comprehensive administrative record is inexcusable. Poulin,
817 F.2d at 870–71; Narrol, 727 F.2d at 1306; Diabo, 627
F.2d at 282. At the very minimum, SSA was duty bound to
include a copy of the claimant’s official earnings record,
maintained by SSA pursuant to 42 U.S.C. § 405(c)(2)(A), in
the administrative record. Concessions of such errors on
appeal with promises to do better in the future have a hollow
ring, particularly when SSA’s failure to state a specific reason
for denying benefits could easily have been avoided had SSA’s
form required the identification of both the express reason for
its determination and the specific deficiency in the claimant’s
application.
16
We will never know whether, with SSA assistance as
required by its regulations and court decisions, the claimant
could have provided additional information to cure the defi-
ciencies in his chart or otherwise acted to demonstrate that
he qualified for benefits. Had SSA made the type of thor-
ough eligibility inquiry early in the process, consistent with
its regulatory duty, this matter could have been resolved
promptly. At this point, ten years after he filed his applica-
tion for benefits, the claimant’s mental condition has deterio-
rated to the point where he cannot assist counsel in pursuing
his claim. As the record stands, the brother cannot rest his
entitlement to benefits on behalf of the claimant on the
illusory grounds that if SSA had fulfilled its responsibilities,
the claimant might have presented evidence of other employ-
ment or might have chosen to remain in the United States
longer so as to qualify for benefits based on ten years of
residency rather than forty QCs. The brother did not proffer
any additional employment evidence on remand, and even
now, assisted by counsel, he has not done so. His family’s
repeated statements to SSA that for medical reasons the
claimant ‘‘had no way of surviving’’ in the United States, that
they lacked sufficient financial resources for the brother to
travel back to the United States with the claimant, and that
the claimant had no plans to return to the United States,
dispel the notion that he might have returned to the United
States. Thus, the void in the record to support the claimant’s
prima facie entitlement remains.
Absent a prima facie case of the claimant’s eligibility to
receive disability benefits, the authorities on which the broth-
er relies to obtain equitable relief are inapposite. For exam-
ple, in Allen, 881 F.2d 37, the Third Circuit chose to award
benefits to the claimant rather than remand where SSA’s
decision was unsupported by substantial evidence on the
record. Id. at 43–44. The claimant in Allen had ‘‘established
a prima faci[e] case of entitlement, the record was fully
developed, and there [was] no good cause for [SSA’s] failure
to adduce all the relevant evidence in the prior proceeding.’’
Id. at 44. Here, the original administrative record betrays
the fact that the claimant had not accrued forty QCs or
17
established ten years of residency. The brother’s reliance on
Allen and its progeny is therefore misguided. See, e.g.,
Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir. 1995); Nielson
v. Sullivan, 992 F.2d 1118, 1121–22 (10th Cir. 1993); see also
Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985); Carroll v.
Sec’y of HHS, 705 F.2d 638, 643–44 (2d Cir. 1983). For a
court to award benefits where the administrative record,
including the evidence proffered by the claimant, indicates
that the claimant is ineligible to receive benefits, would
extend the theory of equitable relief beyond its breaking
point. Cf. Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000).
Accordingly, in light of a pre-remand administrative record
that fails to show that the claimant is entitled to disability
benefits and no compelling reason to believe that he or his
brother can produce evidence to prove otherwise, we affirm
the judgment affirming SSA’s denial of benefits, notwith-
standing the unlawful remand under sentence six of 42 U.S.C.
§ 405(g) and SSA’s violation of its regulations.