Istre v. Apfel

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ No. 99-30136 _______________ ELMO ISTRE, Plaintiff-Appellant, VERSUS KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _________________________ Appeal from the United States District Court for the Western District of Louisiana _________________________ April 13, 2000 Before DAVIS, CYNTHIA HOLCOMB that the remand comported with neither type HALL,* and SMITH, Circuit Judges. of remand approved by the Social Security Act, we vacate and remand to the district JERRY E. SMITH, Circuit Judge: court for further consideration. Elmo Istre appeals an order of the district I. court remanding his disability-benefits claim Istre applied for supplemental security in- for further consideration by the Social Security come disability benefits. An administrative law Appeals Council. Because we agree with Istre judge (“ALJ”) determined that Istre suffers from chronic obstructive lung disease and chronic lower back pain, which are severe 1 * Circuit Judge of the Ninth Circuit, sitting by impairments, but, relying on the testimony of 2 designation. a vocational expert, held that Istre is not fully disabled, because he is able to perform certain court independently reviewed the record, sedentary work functions. adopted the magistrate judge’s report, denied Istre’s summary judgment motion, and Istre requested review of the ALJ’s ruling remanded, purportedly pursuant to the fourth by the Appeals Council and provided addition- sentence of § 405(g), for further agency al evidenceSSa psychological assessment and action. hospital records. The Appeals Council denied review, noting that its consideration of the new II. evidence did not provide a basis for altering In this contextSSthe appeal by a the ALJ’s determination. This rendered the complainant to the district court of a denial of ALJ’s determination the final decision of the benefits by the Appeals CouncilSSa district Social Security Commissioner. court may remand to the Appeals Council in only two circumstances: Istre sued, seeking review of the Commissioner’s decision. After the [W]e [have] examined closely the Commissioner answered, Istre moved for language of § 405(g) and identified two summary judgment, requesting reversal of the kinds of remands under that statute: Commissioner’s decision and the award of (1) remands pursuant to the fourth benefits, or remand to the agency for further sentence, and (2) remands pursuant to consideration of the evidence he had submitted the sixth sentence. The fourth sentence to the Appeals Council. In response, the of § 405(g) authorizes a court to enter a Commissioner moved for remand, pursuant to judgment affirming, modifying, or the fourth sentence of 42 U.S.C. § 405(g), for reversing the decision of the Secretary, further administrative proceedingsSSnamely, with or without remanding the case for for the ALJ “to obtain consultative general rehearing. . . . medical and mental status examinations with pulmonary function studies and psychological The sixth sentence of § 405(g) . . . testing and functional assessments.” The describes an entirely different kind of Commissioner desired reevaluation of Istre’s remand. The district court does not af- residual functional capacity in light of his firm, modify, or reverse the Secretary’s mental impairments, which included decision; it does not rule in any way as alcoholism. Istre then opposed the motion for to the correctness of the administrative remand and requested reversal of the determination. Rather, the court Commissioner’s decision, with any remand for remands because new evidence has the sole purpose of determining the amount of come to light that was not available to benefits. the claimant at the time of the administrative proceeding and that The magistrate judge recommended evidence might have changed the granting the Commissioner’s motion for outcome of the prior proceedings. The remand and denying Istre’s summary judgment statute provides that following a motion, because Istre had “failed to prove his sentence six remand, the Secretary must entitlement to benefits by a clear return to the district court to file with preponderance of the evidence.” The district the court any such additional or 2 modified findings of fact and decision, to the agency “for all further and a transcript of the additional record proceedings.” and testimony upon which his action in modifying or affirming was based. Id. at 98-99 (internal citations and some quotation marks omitted). Hence, certain ... requisites must be met if a remand is to fit under sentence four or sentence six, and the . . . While we did not state explicitly Supreme Court has explained firmly that, if the [in our former cases] that these were the remand does not fit into either category, it is only kinds of remands permitted under not proper. See also Richard v. Sullivan, 955 the statute, we do so today. F.2d 354 (5th Cir. 1992) (following Melkon- yan). Melkonyan v. Sullivan, 501 U.S. 89, 97-99 (1991) (internal citations and quotation marks Accordingly, we must decide whether the omitted). district court’s remand fits within sentence four or six. The record illustrates that it does The Court also specified requirements for a not fit within sentence six. The Commissioner remand under these two sentences of § 405(g) explicitly asked for a determination under sen- to be considered legally effective: tence four, and the magistrate judge and district judge explicitly granted remand under The parties agree that the remand order that sentence. The orders contained no in this case was not entered pursuant to explicit findings that good cause existed to sentence four, as the District Court did consider new evidence or that the court not affirm, modify, or reverse the retained jurisdiction. The remand did not Secretary’s decision. We concur. The therefore occur properly under sentence six. District Court did not make any substantive ruling; it merely returned the Attention then turns to sentence four. In case to the agency for disposition, Melkonyan, the district court had issued an noting that both parties agreed to this order stating, in its entirety, that “[d]efendant’s course. motion to remand, concurred in by plaintiff, is granted. The matter is remanded to the ... Secretary for all further proceedings.” 501 U.S. at 92. The Court found that this order . . . [T]he sixth sentence of § 405(g) did not satisfy the requirements of sentence requires a showing of “good cause” for four, because “the District Court did not make the failure to present the additional evi- any substantive ruling; it merely returned the dence in the prior proceeding[; here] the case to the agency for disposition.” Id. at 98. District Court did not rule explicitly that such a showing had been made. The The instant case presents a factually Secretary also notes that the District indistinguishable situation. The district court Court did not manifest any intent to re- ordered that “[f]or the reasons stated in the tain jurisdiction, as would be the case Report and Recommendation of the under sentence six, but rather remanded Magistrate Judge . . . It is [ordered] that . . . 3 the Commissioner’s Motion for Remand be had the effect of “dismiss[ing] Frizzell’s claim [granted] and this matter be [remanded].” The for lack of jurisdiction.” Id. at 255-57. magistrate judge’s report explained that “the Commissioner wants a remand for the purpos- Next came Luna v. Department of Health es of further developing the record and to & Human Servs., 948 F.2d 169 (5th Cir. properly evaluate Plaintiff’s alcoholism in the 1991), and Bertrand v. Sullivan, 976 F.2d 977 full context of his health status.” The (5th Cir. 1992). In these two cases, this court magistrate judge suggested, and the district held that orders remanding to the Secretary for judge provided, no substantive ruling, whether further consideration were final sentence-four “affirming, modifying or reversing” the ALJ’s remands, either because the parties said they order; the court merely remanded for further were or because they did not fit within the consideration. This does not satisfy the confines of a sentence-six remand.1 requirements of sentence four. Frizzell, Luna and Bertrand are For the proposition that a sentence-four distinguishable from the instant matter in that remand was appropriate under these there, the issue whether the remand was a circumstances, the Commissioner cites Shalala proper sentence-four remand was not before v. Schaefer, 509 U.S. 292, 297 (1993), in the court; in each case, the court merely which the Court did hold the district court to assumed a proper sentence-four remand.2 Any have issued a proper sentence-four remand. attempt to infer from these cases an The remand order issued by the district court understanding that sentence four provides a therein, however, explicitly reversed the “catch-all” provision for district court remands previous decision of the Secretary. That would be error. Where, as here, the question reversal placed the remand squarely within the dictates of sentence four; it is lacking here. 1 1 See Luna, 948 F.2d at 170-71 (explaining that III. 2 “[t]he Secretary claims that the instant case The Commissioner, to the contrary, argues 3 involves a fourth-sentence remand,” and then that certain precedent of this circuit leads to 4 analyzing it as one) (emphasis added); Bertrand, the conclusion that a valid sentence-four re- 5 976 F.2d at 979 (explaining that the remand did mand has occurred here. We disagree. 6 not fulfill the requirements of a sentence-six 7 remand, noting that Melkonyan allowed only for The line of authority to which the 8 sentence-four and sentence-six remands, and then Commissioner refers begins with Frizzell v. 9 holding that “it follows, then, from Melkonyan, Sullivan, 937 F.2d 254 (5th Cir. 1991), which 10 that the remand here can only be a fourth-sentence issued a few months after Melkonyan without 11 remand” (without considering the possibility that speaking to it. In Frizzell, we held that a 12 the remand failed the tests of both sentences)). district court’s order to “remand Frizzell’s 1 2 See Frizzell, 927 F.2d at 257 (explaining that case to the Secretary a second time for further 2 “Frizzell concedes this case involves a sentence development of the record concerning 3 four remand”); Luna, 948 F.2d at 170 (same); Ber- Frizzell’s ability to do past relevant work” was 4 trand, 976 F.2d at 979 (illustrating that the a final order, because orders under sentence 5 question was what type of proper remand was four are always final, and because the order 6 before the court, not whether there was a proper 7 remand at all). 4 is whether any proper remand has occurred, these authorities do not require us to say that a proper remand has occurred. Because the Social Security Act permits remands from the district court to the Appeals Council in only two instances, and because the remand in this case comports with neither, we VACATE the remand order of the district court and REMAND this case to the district court for further proceedings. 5