                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 01-2688
                                  ___________

James P. Brown,                       *
                                      *
     Appellant,                       *
                                      * Appeal from the United States
     v.                               * District Court for the Northern
                                      * District of Iowa
                    1
Jo Anne B. Barnhart,                  *
Commissioner of Social Security,      *         [PUBLISHED]
                                      *
     Defendant/Appellee.              *
                                 ___________

                         Submitted: February 15, 2001
                           Filed: March 7, 2002
                                ___________

Before McMILLIAN and RILEY, Circuit Judges, and KORNMANN,2 District Judge.
                             ___________

KORNMANN, District Judge




      1
       Jo Anne B. Barnhart is substituted for former Acting Commissioner of Social
Security Larry G. Massanari as appellee in this action pursuant to Fed. R. App. P.
43(c).
      2
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota, sitting by designation.
       James P. Brown (Brown) appeals the district court’s order granting the motion
of the Commissioner to remand the case for additional administrative proceedings
pursuant to 42 U.S.C. § 405(g). The Administrative Law Judge (ALJ) had denied
Brown’s claim for Social Security Disability Insurance benefits and Supplemental
Security Income. Brown then filed this action in the district court requesting a review
of the ALJ”s decision under 42 U.S.C. § 405(g). Brown argues that, because of
inconsistencies between the record and the opinion of the ALJ, benefits must be
granted based on the present state of the administrative record.

       We review an appeal of the district court’s order of remand for abuse of
discretion, “which means that we will affirm unless no reasonable person could agree
with the district court.” Higgins v. Apfel, 222 F.3d 405, 505 (8th Cir. 2000) (internal
citation omitted). In this case, the Commissioner sought remand in order to expand
the record and reconcile apparent inconsistencies in the underlying agency decision.

       We have reviewed the record before us and note that the district court
specifically remanded the case to the Commissioner of Social Security “pursuant to
sentence four of 42 U.S.C. § 405(g).” Sentence four provides: “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.” The problem here is that the district
court entered a summary order and did not affirm, modify or reverse the
Commissioner’s decision. In the absence of this, there would be no statutory “power”
to remand pursuant to sentence four. The parties failed to consider or raise this before
the district court or on appeal. We are nevertheless constrained by the plain terms of
the statute.

       The sixth sentence of 42 U.S.C. § 405(g) provides: “[t]he court may, on motion
of the Commissioner . . . made for good cause shown before the Commissioner files
the Commissioner’s answer, remand the case to the Commissioner . . . for further

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action by the Commissioner . . .” In this case, the Commissioner had already filed
an answer and could therefore not have filed a motion to remand pursuant to the sixth
sentence.

      For the reasons stated, we reverse the order of remand of the district court and
remand this case to the district court for further consideration of the matter pursuant
to 42 U.S.C. § 405(g).

       Unfortunately, the present appeal has caused further delay. We reemphasize
the district court’s admonition regarding this matter which was pending before the
Commissioner for far too long. The Court of Appeals fully expects that, if this matter
is again remanded to the Commissioner, the Commissioner will take very prompt
action to resolve the issues raised by the order of remand.

      A true copy.

             Attest:

             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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