Hicks v. SSA
MEMORANDUM OPINION AND ORDER:(1) Hicks's motion to amend the order, 54 , is GRANTED. (2) Court's memorandum opinion and order, R. 36 , and judgment, R. 37 , are CORRECTED to reflect that SSA's decision terminating Hicks's benefits is REVERSED. Signed by Judge Amul R. Thapar on 3/31/2017. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AMY JO HICKS,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Civil No. 16-154-ART
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The Court has remanded this case back to the Social Security Administration (SSA).
R. 36; R. 48. But in doing so, the Court failed to clarify whether it was also reversing the
SSA’s decision. Amy Jo Hicks argues that it was—and thus that the SSA must resume
paying her benefits. R. 54. The SSA argues that it was not, while at the same time agreeing
to reinstate Hicks’s benefits if the Court clarifies that its remand was indeed also a reversal.
R. 59 at 4. Although the SSA has appealed the remand order, the Sixth Circuit has sent the
case back here for the limited purpose of resolving this remedial issue. R. 62.
In a previous episode, the Court held that the SSA had violated Hicks’s due-process
rights because its internal regulations barred her from presenting some favorable medical
evidence at her redetermination hearing—after which the SSA cancelled her benefits. R. 36.
But the Court also concluded that restoring Hicks’s rights requires only a brief supplemental
hearing where she can present the excluded evidence. Id. at 32. So the Court needed a way
to return the case to the SSA. Two options were open: sentences four and six of 42 U.S.C.
§ 405(g). Under the fourth sentence of that provision, courts have the “power to enter . . . a
judgment affirming, modifying, or reversing” an SSA decision “with or without remanding
the cause for a rehearing.” 42 U.S.C. § 405(g). Under the sixth, a “court may, on motion of
the [SSA] . . . remand the case to the [SSA] for further action.” Id. Because the SSA had not
made such a motion, the Court invoked its sentence-four authority and remanded the case for
the SSA to conduct a supplemental hearing. The Court did not, however, specify whether it
was affirming, modifying, or reversing the SSA’s decision to cancel Hicks’s benefits.
That was an oversight, for which the Court apologizes and which it will correct now.
Under sentence four, a court may remand only “in conjunction with a judgment affirming,
modifying, or reversing the [SSA’s] decision.” Melkonyan v. Sullivan, 501 U.S. 89, 99–100
(1991) (emphasis added). The Court still cannot know, as it has said before, “if the SSA’s
decision was right or wrong.” R. 36 at 31. Since the SSA did not consider all the evidence it
should have, the Court cannot say whether it determined the facts correctly. Yet the Court
also cannot remand without giving the SSA a firm decision. See Melkonyan, 501 U.S. at 101
(“[Sentence-four] remand orders must . . . accompany a final judgment affirming, modifying,
or reversing the [SSA’s] decision[.]”). Thus, the question is: What did this Court decide?
Or more accurately: In which box—affirm, modify, reverse—does the Court’s decision fit?
This was the exact question facing the Supreme Court when it heard Sullivan v.
Finkelstein, 496 U.S. 617 (1990). The SSA’s regulations treated disability applicants who
were widows of wage earners differently from those who were wage earners themselves;
wage earners could get benefits by showing that an impairment stopped them from working,
their surviving spouses could not. Id. at 620–21. The SSA denied the widowed Finkelstein’s
application under this regulatory scheme, a scheme with which the district court took issue.
In its view, a widow who cannot work is no less disabled than a wage earner who cannot. Id.
at 624–25. And because the SSA’s regulations had left the record “devoid of any findings
regarding [Finkelstein’s] inability” to work, the court remanded for the SSA to make those
findings. Id. at 622 (internal quotation marks omitted). The SSA immediately appealed,
forcing the Supreme Court to decide whether this type of remand is immediately appealable.
Id. at 619. First, however, the Court had to determine what type of remand it really was—in
the Court’s words, “to consider precisely what the District Court held and why it remanded
this case.” Id. at 623. Since the district court had “in effect . . . ordered the [SSA] to address
[the widow’s] ailment without regard for the regulations that would have precluded such
consideration,” the Supreme Court concluded that the court had “essentially invalidated”
those regulations. Id. at 624. And thus, its remand order “reversed” the SSA decision based
on those regulations. Id.
This analysis dictates the answer here. The story is the same: the faulty regulations,
the SSA decision based on them, and the record consequently devoid of some material
evidence. This Court’s decision was the same: to remand for the SSA to consider the
evidence that its regulations previously excluded. And the Court’s current task is the same:
to determine what kind of decision that was. Finkelstein has the answer. It was a reversal.
Logic also dictates this answer. If a process cannot be trusted, neither can its result.
And a process that violates due process—as Hicks’s redetermination process did—cannot be
trusted. Its result therefore cannot stand. This is true even if Hicks might lose on remand.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 544 (1985) (“[T]he right to a hearing
does not depend on a demonstration of certain success.”). The Court would not grant a
defendant a new trial and yet keep his conviction in place, making him stand trial as a stillguilty man; if the government violates due process to secure a conviction, the conviction is
invalid and the Court must reverse it. E.g., Smith v. Cain, 565 U.S. 73 (2012). Just so here.
The agency reached a decision by violating Hicks’s due-process rights. Reversal is the way
that courts right such wrongs. Cf. Brantley v. Comm’r of Soc. Sec., 637 F. App’x 888, 896–
97 (6th Cir. 2016) (“Not to reverse a decision that resulted from the [SSA’s] violation of the
law . . . ‘would afford the [agency] the ability [to] violate [it] with impunity and render
protections promised therein illusory.’” (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 546 (6th Cir. 2004)).
The SSA responds in two ways. First it attempts to distinguish Finkelstein, pointing
out that the question presented there “was whether a district court’s sentence-four remand
was immediately appealable—not whether such a remand required the underlying decision to
be vacated.” R. 59 at 6. True, but irrelevant. To reach the question presented, the Court had
“to consider precisely what the District Court held.” Finkelstein, 496 U.S. at 623. And it is
that part of the decision that informs this one. The SSA also points out that what the district
court held there is different than what the Court held here. Where this Court invalidated one
regulation, that court invalidated a scheme. So, the SSA says, “complying with the district
court’s remand order [there] required reconsidering the claimant’s medical condition using
different rules, such that the [agency’s] prior hearing decision could not possibly stand.”
R. 59 at 6. Here, by contrast, the Court only ordered a supplemental evidentiary hearing,
and, “[d]epending on the answer to that inquiry, the [SSA’s] redetermination decision could
remain intact and unchanged after remand.” Id. Again, true. But again, beside the point.
The SSA’s decision in Finkelstein could not stand because of how the agency reached it, but
the SSA could have decided again on remand that the widow was not entitled to benefits—
once it allowed her to make her case. The SSA’s decision here also cannot stand because of
how the SSA reached it—by violating due process—even though the SSA might reach the
same decision again after allowing Hicks to make her case. Finkelstein makes clear that,
when a court remands an SSA decision in this scenario, the court reverses the decision.
Second, the SSA argues that there is another way to read the Court’s holding: not as a
reversal, but as a modification. R. 59 at 7. Sentence four permits courts to do either—and
the SSA is right that Finkelstein does not clearly delineate between “reverse” and “modify”
as those terms are used in Section 405(g). Id. Nor does any other case that the parties have
cited or the Court has seen. Meanwhile, the SSA offers a reading of the Court’s holding as a
modification: Because it “do[es] not necessarily dictate any—let alone a major—change in
the [SSA’s] final decision regarding Hicks’s entitlement to benefits,” the Court’s holding
“can be viewed as requiring that the [SSA’s] decision be modified to the extent warranted
following remand.” Id. In other words, the Court “modified” the SSA’s decision by telling
the SSA to reconsider it and to modify it as necessary. In the abstract, this is a plausible
reading of the Court’s decision. Courts sometimes “remand without vacating,” a remedy that
allows agencies to fix process errors at minimal cost (for the government, at least). 1 But the
The Administrative Conference of the United States explains this remedy in its recommendation as to how courts
should use it. See Administrative Conference Recommendation 2013-6: Remand Without Vacatur (Dec. 17, 2013).
To be clear, the Court has not seen a case in which the D.C. Circuit applied this remedy under sentence four of 42
U.S.C. § 405(g); indeed, as explained here, that sentence would not allow a court to do so.
question here is not abstract. There is sentence four to consider. And the “plain language”
of that sentence only “authorizes a district court to enter a judgment ‘with or without’ a
remand order, not a remand order ‘with or without’ a judgment.” Shalala v. Schaefer, 509
U.S. 292, 296 (1993). A court does not “modify” a decision by waiting to see how (and if)
an agency will modify it. Sentence four requires the court itself to modify the decision,
which the Court did not do here.
The SSA essentially characterizes the Court’s order not as a sentence-four, but as a
sentence-six remand. On sentence-six remand, the SSA may consider new facts, modify its
own decision, and report back to court when it is done. 42 U.S.C. § 405(g). But because the
SSA did not move for a sentence-six remand, the Court’s order was not—and could not be—
a sentence-six remand. And the Supreme Court has admonished lower courts not to jumble
these sentences up, because the “distinction is crucial to the structure of judicial review
established under [Section] 405(g).” Shalala, 509 U.S. at 301. The Court therefore cannot
accept the SSA’s reading of “modify” as used in sentence four. That reading would turn
sentence four into an ersatz sentence six, allowing a court to remand without an “[i]mmediate
entry of judgment,” which “is in fact the principal feature that distinguishes a sentence-four
remand from a sentence-six remand.” Id. at 297. Rather, the Court must apply sentence four
as the Finkelstein Court did. This Court of course did not affirm the SSA’s decision; nor did
it modify the decision. By invalidating the regulations that made Hicks’s redetermination
hearing unconstitutional, the Court reversed the decision that the hearing produced.
Thus, pursuant to Federal Rule of Civil Procedure 60(a), the Court uses this Order to
“correct” the “mistake arising from oversight” in its previous order. Per sentence four, the
Court was required to affirm, modify, or reverse the SSA’s decision before remanding. 42
U.S.C. § 405(g). Per Finkelstein, the Court’s previous decision amounted to a reversal. As
such, the SSA’s decision—that Hicks is no longer entitled to benefits—is reversed. The SSA
must therefore return Hicks to the position she was in before the agency’s decision. That
means the SSA must resume paying Hicks, as it has agreed to do, see R. 59 at 4, and as its
regulations require, see Soc. Sec. Admin., Hearings, Appeals, and Litigation Law Manual
(“HALLEX”) § I-1-3-25(C)(5). The SSA must also adjust any overpayment that it has
sought from Hicks until it proves through a valid hearing that she is not entitled to benefits.
Cf. Califano v. Yamasaki, 442 U.S. 682, 705–06 (1979).
The Court has entered similarly incomplete orders in six related cases: Blackburn v.
Berryhill, 7:16-cv-00053-ART (E.D. Ky. 2016); Ousley v. Berryhill, 7:16-cv-00064-ART
(E.D. Ky. 2016); Justice v. Berryhill, 7:16-cv-00089-ART (E.D. Ky. 2016); Jenkins v.
Berryhill, 7:16-cv-00095-ART (E.D. Ky. 2016); Adams v. Berryhill, 7:16-cv-00106-ART
(E.D. Ky. 2016); and Hale v. Berryhill, 7:16-cv-00053-ART (E.D. Ky. 2016).
has not yet given the Court jurisdiction to correct those. If the plaintiffs there obtain the
Sixth Circuit’s leave for a limited remand, however, the Court would promptly correct their
orders/judgments pursuant to Federal Rule of Civil Procedure 60(a).
apologizes for the error/oversight in its previous order.
The Court again
Accordingly, it is ORDERED as follows:
Hicks’s motion to amend the order, R. 54, is GRANTED.
The Court’s memorandum opinion and order, R. 36, and judgment, R. 37, are
CORRECTED to reflect that the SSA’s decision terminating Hicks’s benefits
This the 31st day of March, 2017.
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