                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUL 25 2000
                             FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

    DARLENE M. HUFF,

                Plaintiff-Appellant,

    v.                                                     No. 99-7134
                                                     (D.C. No. CIV-99-179-S)
    KENNETH S. APFEL, Commissioner,                        (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT             *




Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.



         Plaintiff appeals an order of the district court remanding her disability

benefits claim to the Commissioner of the Social Security Administration for

further administrative proceedings. Plaintiff contends that the district court

should have reversed the denial of benefits and remanded for an outright award

of benefits, instead. Because we conclude that the remand did not comply with

any of the types of remand permitted by the Social Security Act, we must vacate


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the district court’s order and remand this matter to the district court for further

action. 1

       This case is governed by 42 U.S.C. § 405(g), which provides for judicial

review of final decisions of the Commissioner in social security cases. Section

405(g) specifies what actions the district court may take on review, and gives

the district court only limited authority to remand a case to the agency.    See

Melkonyan v. Sullivan , 501 U.S. 89, 99-100 (1991). The district court may

remand only in “three carefully delineated circumstances:”

       The court may remand the case after passing on its merits and
       issuing a judgment affirming, reversing, or modifying the
       [Commissioner’s] decision, a “sentence four” remand.   [2]

       Alternatively, the court may remand the case without ruling on
       the merits if (a) the [Commissioner] requests remand, for good
       cause, prior to filing [his] answer; or (b) new and material
       evidence comes to light, and there is good cause for failing to
       incorporate such evidence in the earlier proceeding. These are
       “sentence six” remands. [3]

1
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2
       This refers to the fourth sentence of § 405(g), which provides: “The court
shall have the power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the [Commissioner],
with or without remanding the cause for a rehearing.”
3
      This refers to the sixth sentence of § 405(g), which provides: “The court
may, on motion of the [Commissioner] made for good cause shown before he files
his answer, remand the case to the [Commissioner] for further action by the
                                                                     (continued...)

                                             -2-
Nguyen v. Shalala , 43 F.3d 1400, 1403 (10th Cir. 1994) (citations omitted).

      When a district court remands an action under sentence four, the remand is

part of a final judgment that disposes of the action and is, therefore, immediately

appealable. See Forney v. Apfel , 524 U.S. 266, 269-70 (1998) (immediately

appealable by claimant);   Sullivan v. Finkelstein , 496 U.S. 617, 628 (1990)

(immediately appealable by Commissioner). The claimant can appeal a sentence

four remand even if he himself asked for the remand as an alternative basis of

relief. See Forney , 524 U.S. at 271. A remand under sentence six, however, is

considered interlocutory and non-appealable because the district court retains

jurisdiction over the action during the pendency of the additional administrative

proceedings. See Raitport v. Callahan , 183 F.3d 101, 104 (2d Cir. 1999). The

parties must return to the district court at the conclusion of the administrative

proceedings to obtain a final judgment.   See 42 U.S.C. § 405(g); Melkonyan ,

501 U.S. at 102.

      In the present case, plaintiff asked the district court to reverse the

Commissioner’s decision and order that she be awarded benefits. As an

alternative, plaintiff asked that the court at least remand the action under sentence


3
 (...continued)
[Commissioner], and it may at any time order additional evidence to be taken
before the [Commissioner], 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 . . . .”

                                          -3-
six for the Commissioner to consider certain new and material evidence. After

filing his answer, the Commissioner requested that the court remand the case

under sentence four for further administrative proceedings. Without

acknowledging any error in the earlier administrative decision, the Commissioner

asked that the case be remanded for the ALJ “to update the medical record with

a current orthopedic consultative examination, and to address the medical

opinions contained in exhibits B19 and B27. The ALJ will also reevaluate the

Plaintiff’s residual functional capacity (RFC). Additionally, Plaintiff should be

given the opportunity to submit further evidence and appear at a supplemental

hearing.” Appellant’s App. at 530. Plaintiff objected to the Commissioner’s

motion for remand, arguing that the existing administrative record established

her disability, but again stated that, if the district court would not grant her

an outright award of benefits, it should at least remand the action to the

Commissioner.




                                           -4-
      Thereafter, the district court entered the following order purporting to

remand the action under sentence four:

            Before the court for its consideration is the Commissioner’s
      motion to remand for further administrative proceedings. Having
      reviewed the motion and the record in this case, the court finds that
      the Commissioner’s motion should be granted and this action should
      be remanded to the Commissioner pursuant to sentence four of
      42 U.S.C. § 405(g) for further administrative proceedings. The
      Commissioner’s motion to remand is granted.

Appellant’s App. at 535. The district court also entered judgment for plaintiff

on a separate document in accordance with Fed. R. Civ. P. 58.

      While it is clear that the district court intended to enter a final judgment

and remand in accordance with sentence four, the court did not comply with the

statutory requirements of sentence four. The court made no substantive ruling on

the correctness of the Commissioner’s decision, which is a necessary prerequisite

to a sentence four remand.   See Melkonyan , 501 U.S. at 98-101; Jackson v.

Chater , 99 F.3d 1086, 1092 (11th Cir. 1996) (“To remand under . . . sentence

four, the district court must either find that the decision is not supported by

substantial evidence, or that the Commissioner (or the ALJ) incorrectly applied

the law relevant to the disability claim.”). Because the district court’s order

contained no substantive ruling on the merits of the Commissioner’s decision,

but merely remanded the action to the agency for further proceedings, it was not




                                          -5-
a proper sentence four remand.      See Melkonyan , 501 U.S. at 98; Istre v. Apfel ,

208 F.3d 517, 520 (5th Cir. 2000).

      Nor can the order be construed as a sentence six remand. The first part of

sentence six authorizes a remand only if the Commissioner moves for one before

filing his answer and shows good cause. That did not happen here. The second

part of sentence six authorizes a remand only upon a showing that there is new

and material evidence and that there is good cause for the party’s failure to

present the evidence in the earlier administrative proceedings. Although plaintiff

argued that she made the required showing for this type of remand, the district

court’s order did not contain any findings on these requirements and none can be

inferred from the court’s grant of the Commissioner’s motion for a sentence four

remand. Further, it is clear from the district court’s order and judgment that it did

not intend to retain jurisdiction over the action during the pendency of the

administrative proceedings. Therefore, the remand was not proper under sentence

six. See Istre , 208 F.3d at 520.

      Because the Social Security Act authorizes a remand only under the

specific circumstances delineated in sentence four and sentence six of § 405(g),

the district court exceeded its authority when it entered the order at issue here.




                                            -6-
Therefore, we VACATE the district court’s order and judgment and REMAND

the action to the district court for further proceedings consistent with this order

and judgment.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




                                          -7-
