Honeycutt v. Social Security Administration, Commissioner of
Filing
36
MEMORANDUM AND ORDER denying 31 Motion for Relief from Judgment. Signed by District Judge Daniel D. Crabtree on 4/15/2015. The Court orders that its September 30, 2014 Memorandum and Order reversing and remanding the Commissioner's decisio n denying plaintiff Social Security Disability and Supplemental Security Income benefits be amended to reflect entry of judgment pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Court further orders that the language in the Court's entry of judgment (Doc. 29) shall be amended to reflect a judgment entered pursuant to the fourth sentence of 42 U.S.C. § 405(g). (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BERNARD E. HONEYCUTT,
Plaintiff,
v.
Case No. 13-cv-1243-DDC
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.
___________________________________
MEMORANDUM AND ORDER
Plaintiff Bernard Honeycutt sought judicial review under 42 U.S.C. § 405(g) of the final
decision of the Commissioner of the Social Security Administration (“Commissioner”) denying
his application for benefits under Title II and Title XVI of the Social Security Act. On
September 30, 2014, this Court reversed and remanded the decision of the Commissioner
because it concluded that the Appeals Council erroneously excluded new and material evidence.
The Court entered final judgment pursuant to “the sixth sentence of 42 U.S.C. § 405(g)” and
remanded the case to the agency to reconsider plaintiff’s benefits application inclusive of the
new evidence (Doc. 29). The Commissioner now has filed a motion seeking relief from that
final judgment pursuant Federal Rule of Civil Procedure 60(b) (Doc. 32). She argues that the
entry of final judgment is contrary to a sentence-six remand and that the Court should rescind its
entry of final judgment. Plaintiff has filed a response, arguing that the Court should not rescind
the judgment but instead amend it to reflect a sentence-four remand (Doc. 35). For the reasons
explained below, the Court denies the Commissioner’s motion and amends its September 30,
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2014 Memorandum and Order to reflect entry of judgment pursuant to the fourth sentence of 42
U.S.C. § 405(g).
A. The Features of Sentence-Four and Sentence-Six Remands
“In cases reviewing final agency decisions on Social Security benefits, the exclusive
methods by which district courts may remand to the Secretary are set forth in sentence four and
sentence six of [42 U.S.C.] § 405(g).” Shalala v. Schaefer, 509 U.S. 292, 296 (1993). Those
parts of the statute provide:
[Sentence Four:] 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 Security, with or without remanding the
cause for a rehearing . . . .
[Sentence Six:] 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; and the Commissioner of Social Security shall, after the case is
remanded, and after hearing such additional evidence if so ordered, modify or
affirm the Commissioner’s findings of fact or the Commissioner’s decision, or
both, and shall file with the court any such additional and modified findings of
fact and decision, and, in any case in which the Commissioner has not made a
decision fully favorable to the individual, a transcript of the additional record and
testimony upon which the Commissioner’s action in modifying or affirming was
based. Such additional or modified findings of fact and decision shall be
reviewable only to the extent provided for review of the original findings of fact
and decision.
42 U.S.C. § 405(g). A sentence-four remand is proper when the reviewing court makes a
substantive ruling on the correctness of the Commissioner’s decision. See Melkonyan v.
Sullivan, 501 U.S. 89, 98 (1991). Entry of final judgment must accompany an order remanding a
case under sentence four. Shalala, 509 U.S. at 297 (citing Sullivan v. Finkelstein, 496 U.S. 617,
629 (1990)). “Immediate entry of judgment . . . is in fact the principal feature that distinguishes
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a sentence-four remand from a sentence-six remand.” Id. (citing Melkonyan, 501 U.S. 89 at 10102). By contrast, a sentence-six remand “does not affirm, modify, or reverse the [Comissioner’s]
decision; it does not rule in any way as to the correctness of the administrative determination.”
Id. Under sentence six, “[t]he district court . . . does not rule in any way as to the correctness of
the administrative determination.” Melkonyan, 501 U.S. 89 at 98. “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
proceeding.”1 Id. Such remands are not final judgments. Huff v. Apfel, 221 F.3d 1352 (10th Cir.
2000). Instead, the district court retains jurisdiction until the conclusion of further administrative
proceedings, after which the parties may return to it and obtain a final judgment. Id. (citing 42
U.S.C. § 405(g); Melkonyan, 501 U.S. at 102).
To resolve the Commissioner’s motion, the Court must first revisit the grounds upon
which it ordered remand in its September 30, 2014 Memorandum and Order (the “Order”).
Next, it must determine whether the type of remand it ordered properly falls under sentence four
or sentence six of § 405(g). Finally, it must decide what kind of relief, if any, it should grant the
parties.
B. The Reasons the Court Remanded the Case
In February 2013, plaintiff presented additional medical evidence to the Appeals Council,
which he attached to his brief as Exhibit A. Doc. 18-1. The new evidence included records from
Dr. Brent Adams documenting a successful cervical fusion operation that plaintiff received in
September 2012. Id. The Appeals Council declined to consider the new evidence because it
concluded that it was unrelated to the time period for which plaintiff sought benefits. See Doc.
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Sentence six also authorizes the district court to remand if the Commissioner moves for remand
before it has filed a response in the appeal. This category of sentence-six remands is not implicated here.
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10 (R. 2) (“We also looked at the medical records [claimant] submitted . . . . This new
information is about a later time. Therefore, it does not affect the decision about whether
[claimant was] disabled beginning on or before [the alleged disability period].”). In its Order,
this Court found that the records comprising Exhibit A were new, material, and chronologically
relevant to the plaintiff’s disability period. It thus concluded that the Appeals Council erred by
excluding them.
C. The Procedure for Submitting New Evidence to the Appeals Council
The Commissioner’s regulations provide that, when reviewing an ALJ’s decision, “the
Appeals Council shall consider the additional evidence only where it relates to the period on or
before the date of the administrative law judge hearing decision . . . . It will then review the case
if it finds that the administrative law judge’s action, findings, or conclusion is contrary to the
weight of the evidence currently of record.” 20 C.F.R. § 416.1470(b), § 416.1476(b). These
regulations mandate a two-step process. First, the Appeals Council must evaluate all of the new
evidence a claimant submits and make a threshold determination about whether the evidence is
new, material, and relates to the relevant disability period. See id. (“If you submit evidence
which does not relate to the period on or before the date of the administrative law judge hearing
decision, the Appeals Council will return the additional evidence to you with an explanation as to
why it did not accept the additional evidence and will advise you of your right to file a new
application.”). If the Appeals Council finds that the new evidence qualifies, it must then review
the case to determine whether the ALJ’s “action, findings, or conclusion is contrary to the weight
of the evidence currently of record,” inclusive of the new evidence. Id.
D. Whether the Court Should Have Remanded Under Sentence Four or Six
The Appeals Council concluded that the surgical records comprising plaintiff’s Exhibit A
did not relate to plaintiff’s alleged disability period. It thus excluded the evidence from the
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record. The Court held that it was error to exclude this new evidence and remanded the case to
the Commissioner. The Commissioner argues that the Court’s Order remanded the case “solely
for consideration of additional evidence attached to Plaintiff’s brief.” Doc. 32 at 2. This, she
argues, renders “a sentence-six remand appropriate” because the Court did “‘not rule in any way
as to the correctness of the administrative proceeding.’” Id. at 2-3 (quoting Melkonyan, 501 U.S.
89 at 98).
While the first part of the Commissioner’s characterization of the Order is correct, it is
not dispositive of the issue presented here. A remand for consideration of additional evidence
does not, by itself, determine whether the remand falls under sentence six or sentence four. As
the Supreme Court has noted, a remand based on the Commissioner’s error in applying its own
regulations proceeds under sentence four, even when the remand requires the Commissioner to
take up additional evidence. Finkelstein, 496 U.S. at 625 (holding that a remand to correct an
error by the Commissioner in applying the regulations proceeds under sentence four, even if the
remand requires the Commissioner to take up additional evidence). Here, the Court ruled that
the Appeals Council erred when making the threshold determination under 20 C.F.R. §
416.1470(b) whether the records comprising Exhibit A were new, material, and chronologically
relevant. Doc. 28 at 20 (“[T]he Court reverses the decision of the Appeals Council excluding
Exhibit A from the record.”). Thus, it is clear that the Court ruled on the correctness of one
aspect of the Appeals Council’s decision. Whether its ruling constitutes a decision about the
correctness of the Commissioner’s decision, as opposed to the Appeals Council’s decision, and
hence qualifies as a sentence-four remand turns out to be a more complicated question.
Under 42 U.S.C. § 405(g), a federal court may review only “final decisions” of the
Commissioner. Brown v. Colvin, No. 13-1192-JWL, 2013 WL 4541068, at *2 (D. Kan. Aug. 27,
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2013). The circuits are split over whether the Appeals Council’s decision to deny review is a
component of the “final decision of the Commissioner” subject to judicial review under 42
U.S.C. § 405(g). See generally, Carolyn A. Kubitschek & Jon C. Dubin, Social Security
Disability Law & Procedure in Federal Court § 8:10 (2015 ed.) (describing the circuits’
approaches as “divided between a majority view and a minority view,” with each circuit having
“its own variation of the majority or minority view”). A majority of circuits holds that the final
decision includes the Appeals Council’s denial of a request for review.2 A minority has held that
when the Appeals Council denies review, the “final decision of the Commissioner” includes only
the ALJ’s decision.3
The Tenth Circuit had adopted the majority view. See O’Dell v. Shalala, 44 F.3d 855,
859 (10th Cir. 1994) (holding that “because the Secretary’s decision does not become final until
after the Appeals Council denies review or issues its own findings, her ‘final decision’
necessarily includes the Appeals Council’s conclusion that the ALJ’s findings remained correct
despite the new evidence”). It follows that when a court remands a case based on the Appeals
Council’s error, it rules on the correctness of an aspect of the Commissioner’s decision.
Although the Tenth Circuit has not extended this logic explicitly to hold that such remands thus
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The Tenth Circuit, along with the Second, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits
have concluded that the Appeals Council’s denial of a request for review also is part of the “final decision
of the Commissioner.” See O’Dell, 44 F.3d at 859 (10th Cir. 1994); Perez v. Chater, 77 F.3d 41, 44-46
(2d Cir. 1996); Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991);
Higginbotham v. Barnhart, 405 F.3d 332, 335-36 (5th Cir. 2005); Nelson v. Sullivan, 966 F.2d 363, 366
(8th Cir. 1992); Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1263 (11th Cir. 2007).
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The Third, Sixth, and Seventh Circuits have held that when the Appeals Council denies review,
the decision of the ALJ is the only “final decision of the Commissioner” subject to judicial review. See
Matthews v. Apfel, 239 F.3d 589, 593-94 (3d Cir. 2001); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir.
1993); Eads v. Sec’y of the Dep’t of Health & Human Servs., 983 F.2d 815, 818 (7th Cir. 1993), but see
DeGrazio v. Colvin, 558 F. App’x 649, 652 (7th Cir. 2014) (holding that evidence submitted to the
Appeals Council was not “new” evidence for purposes of sentence six)
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must fall under sentence four, it nearly has held as much. Lawson v. Chater, 83 F.3d 432, 1996
WL 195124, at *2 (10th Cir. Apr. 23, 1996) (holding the Appeals Council’s exclusion of
qualifying new evidence “constitutes substantial legal error necessitating a remand” (emphasis
added)). For the reasons explained below, the Court predicts that the Tenth Circuit, if confronted
with this question, would conclude that a remand based on the Appeals Council’s exclusion of
qualifying new evidence falls under sentence four.
Among the circuits that have addressed this narrower question, those sharing the Tenth
Circuit’s view that the Appeals Council’s denial of review as part of the Commissioner’s final
decision also have concluded that remands based on the exclusion of qualifying new evidence
require a sentence-four remand. For example, the Eleventh Circuit held that judicial review
under sentence four is appropriate when the Appeals Council fails to consider new evidence. See
Flowers v. Comm’r of Soc. Sec., 441 F. App’x 735, 745 n.9 (11th Cir. 2011) (explaining that a
sentence-four, as opposed to a sentence-six, remand is appropriate when the Appeals Council
“‘did not adequately consider additional evidence’” a claimant properly presented to it (quoting
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1268 (11th Cir. 2007))). The Fifth
Circuit, also sharing the Tenth Circuit’s view that the Appeals Council’s denial of review is part
of the final decision of the Commissioner, has reached the same conclusion. See Istre v. Apfel,
208 F.3d 517, 518 (5th Cir. 2000) (reversing the district court for failing to specify type or
remand, but noting that an order reversing the Commissioner’s decision and remanding for
further consideration of evidence first submitted to the Appeals Council is a sentence-four
remand). So has the Fourth Circuit. See Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011)
(holding that when new evidence submitted to the Appeals Council is not controverted by other
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evidence in the record, the court may reverse and remand pursuant to sentence four (citing
Wilkins, 953 F.2d at 96)).
By contrast, district courts in the Sixth Circuit—which has adopted the minority view that
the Commissioner’s decision becomes final after the ALJ renders a decision—have concluded
that evidence first submitted to the Appeals Council may serve as the basis only for a sentencesix remand. See Grant v. Astrue, No. 1:08-CV-197, 2009 WL 1884001, at *6 (E.D. Tenn. June
29, 2009) (holding that “[w]hen an ALJ renders the final decision of the Commissioner, . . .
additional evidence presented after the ALJ’s decision should be considered only for purposes of
a remand pursuant to the sixth sentence of 42 U.S.C. § 405(g)” (citing Cotton v. Sullivan, 2 F.3d
692, 696 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 685 (6th Cir.
1992))); see also Cline v. Secretary Sec’y of Health & Human Servs., 875 F. Supp. 435, 439
(N.D. Ohio 1995) (holding that evidence newly submitted to the Appeals Council “may supply
the basis for remand under sentence six of § 405(g), provided good cause is shown for plaintiff’s
failure to incorporate the evidence into the record before the ALJ”).
This dissonance makes sense given the circuits’ differing premises about the effect of the
Appeals Council’s denial of review. As the Court has explained, sentence-six remands are
appropriate only to consider evidence not before the Commissioner during the administrative
proceedings. Melkonyan, 501 U.S. at 98. If the ALJ’s decision alone constitutes the decision of
the Commissioner, it follows that evidence submitted for the first time to the Appeals Council is
not evidence that was “before the Commissioner.” See Ingram, 496 F.3d at 1269. Consequently,
it may not serve as the basis for a sentence-six remand. But if the Appeals Council’s decision to
deny review is part of the Commissioner’s decision, then such evidence was “before the
Commissioner” during the administrative proceedings. It thus can serve as the basis for a
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sentence-four remand only.4 See id. Contrary to the Commissioner’s argument then, the Court’s
Order, in fact, ruled on the correctness of the Commissioner’s decision, at least as the Tenth
Circuit understands the scope of the Commissioner’s decision. For this reason, Court predicts
the Tenth Circuit would hold that the Court’s remand based on the Appeals Council’s exclusion
of qualifying evidence is a sentence-four remand.
E. Appropriate Relief
The Commissioner is correct that the Court’s entry of judgment was contrary to a
sentence-six remand. However, for the reason explained above, the Court agrees with plaintiff
that the appropriate remedy is not to rescind its entry of judgment but to amend its Order (Doc.
28) to reflect entry of judgment under sentence four, not sentence six, of 42 U.S.C. § 405(g).
The Court therefore denies the Commissioner’s motion for relief from judgment.
IT IS THEREFORE ORDERED BY THE COURT THAT the Commissioner’s
Motion for Relief from Judgment (Doc. 31) is denied. The Court orders that its September 30,
2014 Memorandum and Order reversing and remanding the Commissioner’s decision denying
plaintiff Social Security Disability and Supplemental Security Income benefits be amended to
reflect entry of judgment pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Court
Admittedly, a circuit’s view on whether the final decision of the Commissioner includes the
Appeals Council’s denial of review does not predict perfectly whether courts within the circuit will treat
this type of remand as one under sentence four or sentence six. For example, in Haak v. Chater, the
court concluded that evidence plaintiff submitted to the Appeals Council was not “new” because plaintiff
presented it during the administrative proceedings. No. 94-C-7594, 1997 WL 162850, at *3 (N.D. Ill.
Mar. 27, 1997). Accordingly, it held that a sentence-six remand was inappropriate even though the
Seventh Circuit had held in Eads that only the ALJ’s decision is subject to judicial review when the
Appeals Council denies review. Id. The Fourth Circuit reached the converse result in Jackson v. Astrue,
467 F. App’x 214, 218 (4th Cir. 2012). It held “[W]here new and material evidence submitted to the
Appeals Council contradicts both the ALJ’s findings and underlying reasoning, and the Appeals Council
failed to provide any reason for disregarding this additional evidence . . . our proper disposition is to
remand pursuant to sentence six of § 405(g).” The Fourth Circuit reached this conclusion despite its
earlier decisions in Meyer and Wilkins, where it had held that the Appeals Council’s decisions are part of
the Commissioner’s final decision and thus such remands must proceed under sentence four.
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further orders that the language in the Court’s entry of judgment (Doc. 29) shall be amended to
reflect a judgment entered pursuant to the fourth sentence of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
Dated this 16th day of April, 2015, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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