Istre v. Apfel, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-30136
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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
HALL,* and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Elmo Istre appeals an order of the district
court remanding his disability-benefits claim
for further consideration by the Social Security
Appeals Council. Because we agree with Istre
that the remand comported with neither type
of remand approved by the Social Security
Act, we vacate and remand to the district
court for further consideration.
I.
Istre applied for supplemental security in-
come disability benefits. An administrative law
judge (“ALJ”) determined that Istre suffers
from chronic obstructive lung disease and
chronic lower back pain, which are severe
impairments, but, relying on the testimony of
a vocational expert, held that Istre is not fully
* Circuit Judge of the Ninth Circuit, sitting by 1
designation. 2

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disabled, because he is able to perform certain
sedentary work functions.
Istre requested review of the ALJ’s ruling
by the Appeals Council and provided addition-
al evidenceSSa psychological assessment and
hospital records. The Appeals Council denied
review, noting that its consideration of the new
evidence did not provide a basis for altering
the ALJ’s determination. This rendered the
ALJ’s determination the final decision of the
Social Security Commissioner.
Istre sued, seeking review of the
Commissioner’s decision. After the
Commissioner answered, Istre moved for
summary judgment, requesting reversal of the
Commissioner’s decision and the award of
benefits, or remand to the agency for further
consideration of the evidence he had submitted
to the Appeals Council. In response, the
Commissioner moved for remand, pursuant to
the fourth sentence of 42 U.S.C. § 405(g), for
further administrative proceedingsSSnamely,
for the ALJ “to obtain consultative general
medical and mental status examinations with
pulmonary function studies and psychological
testing and functional assessments.” The
Commissioner desired reevaluation of Istre’s
residual functional capacity in light of his
mental impairments, which included
alcoholism. Istre then opposed the motion for
remand and requested reversal of the
Commissioner’s decision, with any remand for
the sole purpose of determining the amount of
benefits.
The magistrate judge recommended
granting the Commissioner’s motion for
remand and denying Istre’s summary judgment
motion, because Istre had “failed to prove his
entitlement to benefits by a clear
preponderance of the evidence.” The district
court independently reviewed the record,
adopted the magistrate judge’s report, denied
Istre’s summary judgment motion, and
remanded, purportedly pursuant to the fourth
sentence of § 405(g), for further agency
action.
II.
In this contextSSthe appeal by a
complainant to the district court of a denial of
benefits by the Appeals CouncilSSa district
court may remand to the Appeals Council in
only two circumstances:
[W]e [have] examined closely the
language of § 405(g) and identified two
kinds of remands under that statute:
(1) remands pursuant to the fourth
sentence, and (2) remands pursuant to
the sixth sentence. The fourth sentence
of § 405(g) authorizes a court to enter a
judgment affirming, modifying, or
reversing the decision of the Secretary,
with or without remanding the case for
rehearing. . . .
The sixth sentence of § 405(g) . . .
describes an entirely different kind of
remand. The district court does not af-
firm, modify, or reverse the Secretary’s
decision; it does not rule in any way as
to the correctness of the administrative
determination. Rather, the court
remands because new evidence has
come to light that was not available to
the claimant at the time of the
administrative proceeding and that
evidence might have changed the
outcome of the prior proceedings. The
statute provides that following a
sentence six remand, the Secretary must
return to the district court to file with
the court any such additional or

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modified findings of fact and decision,
and a transcript of the additional record
and testimony upon which his action in
modifying or affirming was based.
. . .
. . . While we did not state explicitly
[in our former cases] that these were the
only kinds of remands permitted under
the statute, we do so today.
Melkonyan v. Sullivan, 501 U.S. 89, 97-99
(1991) (internal citations and quotation marks
omitted).
The Court also specified requirements for a
remand under these two sentences of § 405(g)
to be considered legally effective:
The parties agree that the remand order
in this case was not entered pursuant to
sentence four, as the District Court did
not affirm, modify, or reverse the
Secretary’s decision. We concur. The
District Court did not make any
substantive ruling; it merely returned the
case to the agency for disposition,
noting that both parties agreed to this
course.
. . .
. . . [T]he sixth sentence of § 405(g)
requires a showing of “good cause” for
the failure to present the additional evi-
dence in the prior proceeding[; here] the
District Court did not rule explicitly that
such a showing had been made. The
Secretary also notes that the District
Court did not manifest any intent to re-
tain jurisdiction, as would be the case
under sentence six, but rather remanded
to the agency “for all further
proceedings.”
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
Supreme Court has explained firmly that, if the
remand does not fit into either category, it is
not proper. See also Richard v. Sullivan, 955
F.2d 354 (5th Cir. 1992) (following Melkon-
yan).
Accordingly, we must decide whether the
district court’s remand fits within sentence
four or six. The record illustrates that it does
not fit within sentence six. The Commissioner
explicitly asked for a determination under sen-
tence four, and the magistrate judge and
district judge explicitly granted remand under
that sentence. The orders contained no
explicit findings that good cause existed to
consider new evidence or that the court
retained jurisdiction. The remand did not
therefore occur properly under sentence six.
Attention then turns to sentence four. In
Melkonyan, the district court had issued an
order stating, in its entirety, that “[d]efendant’s
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
did not satisfy the requirements of sentence
four, because “the District Court did not make
any substantive ruling; it merely returned the
case to the agency for disposition.” Id. at 98.
The instant case presents a factually
indistinguishable situation. The district court
ordered that “[f]or the reasons stated in the
Report and Recommendation of the
Magistrate Judge . . . It is [ordered] that . . .

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the Commissioner’s Motion for Remand be
[granted] and this matter be [remanded].” The
magistrate judge’s report explained that “the
Commissioner wants a remand for the purpos-
es of further developing the record and to
properly evaluate Plaintiff’s alcoholism in the
full context of his health status.” The
magistrate judge suggested, and the district
judge provided, no substantive ruling, whether
“affirming, modifying or reversing” the ALJ’s
order; the court merely remanded for further
consideration. This does not satisfy the
requirements of sentence four.
For the proposition that a sentence-four
remand was appropriate under these
circumstances, the Commissioner cites Shalala
v. Schaefer, 509 U.S. 292, 297 (1993), in
which the Court did hold the district court to
have issued a proper sentence-four remand.
The remand order issued by the district court
therein, however, explicitly reversed the
previous decision of the Secretary. That
reversal placed the remand squarely within the
dictates of sentence four; it is lacking here.
III.
The Commissioner, to the contrary, argues
that certain precedent of this circuit leads to
the conclusion that a valid sentence-four re-
mand has occurred here. We disagree.
The line of authority to which the
Commissioner refers begins with Frizzell v.
Sullivan, 937 F.2d 254 (5th Cir. 1991), which
issued a few months after Melkonyan without
speaking to it. In Frizzell, we held that a
district court’s order to “remand Frizzell’s
case to the Secretary a second time for further
development of the record concerning
Frizzell’s ability to do past relevant work” was
a final order, because orders under sentence
four are always final, and because the order
had the effect of “dismiss[ing] Frizzell’s claim
for lack of jurisdiction.” Id. at 255-57.
Next came Luna v. Department of Health
& Human Servs., 948 F.2d 169 (5th Cir.
1991), and Bertrand v. Sullivan, 976 F.2d 977
(5th Cir. 1992). In these two cases, this court
held that orders remanding to the Secretary for
further consideration were final sentence-four
remands, either because the parties said they
were or because they did not fit within the
confines of a sentence-six remand.1
Frizzell, Luna and Bertrand are
distinguishable from the instant matter in that
there, the issue whether the remand was a
proper sentence-four remand was not before
the court; in each case, the court merely
assumed a proper sentence-four remand.2 Any
attempt to infer from these cases an
understanding that sentence four provides a
“catch-all” provision for district court remands
would be error. Where, as here, the question
1 See Luna, 948 F.2d at 170-71 (explaining that 1
“[t]he Secretary claims that the instant case 2
involves a fourth-sentence remand,” and then 3
analyzing it as one) (emphasis added); Bertrand, 4
976 F.2d at 979 (explaining that the remand did 5
not fulfill the requirements of a sentence-six 6
remand, noting that Melkonyan allowed only for 7
sentence-four and sentence-six remands, and then 8
holding that “it follows, then, from Melkonyan, 9
that the remand here can only be a fourth-sentence 10
remand” (without considering the possibility that 11
the remand failed the tests of both sentences)). 12
2 See Frizzell, 927 F.2d at 257 (explaining that 1
“Frizzell concedes this case involves a sentence 2
four remand”); Luna, 948 F.2d at 170 (same); Ber- 3
trand, 976 F.2d at 979 (illustrating that the 4
question was what type of proper remand was 5
before the court, not whether there was a proper 6
remand at all). 7

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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.

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