                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    December 21, 2005
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                               No. 05-30626

                             Summary Calendar



                            Robbie P. Bordelon
                                             Plaintiff-Appellant,

                                   versus

                         Jo Anne B. Barnhart,
          Commissioner of the Social Security Administration
                                           Defendant-Appellee.



             Appeal from the United States District Court
                 For the Western District of Louisiana
                              (03-CV-634)



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Plaintiff-appellant Robbie P. Bordelon appeals the district

court’s order vacating and remanding his claim for social security

benefits.    Finding no error, we affirm.




      *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  I

     Robbie P. Bordelon filed a claim for disability insurance

benefits and supplemental security income benefits under Titles II

and XVI of the Social Security Act in January 2001.      He alleged

disability due to stress and an inability to deal with physical

activity.   As of the date of the final administrative decision,

Bordelon was 33-years old.   He has a high school education and past

work experience as a tire mechanic, an auto parts salesman, and a

gas station cashier.

     Following a hearing before an Administrative Law Judge (ALJ),

Bordelon’s applications for benefits were denied. Upon the Appeals

Council’s denial of Bordelon’s request for review, the ALJ’s

decision became the final administrative decision for purposes of

judicial review.

     Bordelon then filed a complaint in the District Court for the

Western District of Louisiana.    After briefing, a magistrate judge

recommended that Bordelon be awarded benefits; the district court

declined to adopt the magistrate’s recommendation and instead

vacated and remanded the final administrative decision for further

administrative proceedings.      Bordelon filed a timely notice of

appeal.




                                  2
                                         II

       We must resolve three issues on appeal. First, the government

contends that because the district court granted Bordelon relief,

he is not aggrieved by the decision and thus cannot appeal.                  Next,

Bordelon argues that the district court’s judgement fails to

comport with the separate document requirement set forth in Federal

Rule of Civil Procedure 58 and with the remand requirements of 42

U.S.C. § 205(g).          Finally, Bordelon contends that the district

court abused its discretion in remanding this matter to the Social

Security Commission for further proceedings.                We review each in

turn.

                                         A

       The       government   contends   that   because    the   district    court

granted Bordelon all the relief he requested (i.e., a remand), he

is not aggrieved by the court’s order and thus cannot appeal.                  The

government relies upon the Supreme Court’s decision in Forney v.

Apfel,1 in which it stated that a “party who receives all that he

has sought generally is not aggrieved by the judgment affording the

relief and cannot appeal from it.”2              In Forney, the Court found

that       the    claimant    had   requested,    first,    reversal    of     the

administrative decision, and, alternatively, remand for further

proceedings.         Because the claimant received “some, but not all, of

       1
        524 U.S. 266 (1998).

      2
        Id. at 271 (citing Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 333
(1980)).

                                         3
the relief requested,” the Court held that she could appeal the

remand “insofar as it denies her the relief she has sought.”3

      The    government’s     contention      mischaracterizes      Bordelon’s

complaint.     A review of Bordelon’s complaint indicates that he

requested either reversal of the administrative decision or remand

for further proceedings.       In paragraph 6 of Bordelon’s complaint,

he states: “The decision denying Plaintiff’s claim is contrary to

the law and regulations, and the conclusions and findings of fact

of the defendant are not supported by substantial evidence.”

Although Bordelon does not use the word “reverse,” the practical

effect of either the errors complained of is a reversal.                   In

addition, in paragraph 11, Bordelon states: “Alternatively, this

case should be remanded pursuant to Watson v. Barnhart, 288 F.3d

212   (5th   Cir.   2002).”      And,       finally,   Bordelon’s    complaint

concludes: “WHEREFORE, Plaintiff prays that this Court: Allow the

plaintiff to proceed and file this complaint without prepayment of

costs; reverse, remand, and order such relief that the Court deems

just and proper.”4      We reject the government’s contention and

conclude that this case falls squarely under Forney.

                                        B




      3
       Id.
      4
       In addition, the fact that the magistrate recommended reversing the
administrative decision is additional evidence that Bordelon satisfied the
requirements of Forney.

                                        4
       Next, Bordelon contends that the district court’s judgment

fails to comport with the separate document requirement of Federal

Rule of Civil Procedure 58 and with the remand requirements of 42

U.S.C. § 405(g).        We find no error.

       Bordelon’s claim under Federal Rule of Civil Procedure 58 has

no merit.      Rule 58 provides, in part: “Every judgment and amended

judgment must be set forth on a separate document . . . .”5                     A

separate document is required in order to clarify when the time for

appeal begins to run.6          The Rule is “a safety valve preserving a

litigant’s right to appeal in the absence of a separate document

judgment.”7        Bordelon fails to specify the specific noncompliance.

The district court’s remand order is clearly labeled as such, and

Bordelon offers no reason why this is not a judgment “set forth on

a separate document” as required by Rule 58.            Even if the order is

not a separate document, Bordelon filed a timely appeal, which, as

Rule       58(d)    recognizes,      “constitute[s]    a   waiver     of      this

requirement.”8




       5
         FED. R. CIV. P. 58(a)(1).
       6
         Ludgood v. Apex Marine Corp. Ship Mgmt., 311 F.3d 364, 368 (5th Cir.
2002).
       7
         Baker v. Mercedes Benz of N. Am., 114 F.3d 57, 60 (5th Cir. 1997).
       8
       FED. R. CIV. P. 58(d); see also Bankers Trust Co. v. Mallis, 435 U.S. 381,
384-88 (1978) (“If, by error, a separate judgment is not filed before a party
appeals, nothing but delay would flow from requiring the court of appeals to
dismiss the appeal. Upon dismissal, the district court would simply file and
enter the separate judgment, from which a timely appeal would then be taken.
Wheels would spin for no practical purpose.”).

                                         5
     Nor do we find merit to Bordelon’s claim that the district

court did not enter a “substantive ruling” under either sentence

four or sentence six of 42 U.S.C. § 405(g).                        Section 405(g),

sentence four, 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

of Social Security, with or without remanding the cause for a

rehearing.”9         Section 405(g), sentence six, provides: “The court

may . . . remand the case to the [Commissioner] for further action

. . . and it may at any time order additional evidence to be taken

. . . .”10

     Bordelon relies upon Istre v. Apfel.11 There, the Commissioner

filed a motion to remand under the fourth sentence of § 405(g).

The magistrate recommending granting the motion to remand and

denying         claimant’s   motion   for       summary    judgment,      because   the

claimant had not proven entitlement to benefits.                          The district

court adopted the magistrate’s report without written opinion.                       We

held that neither the magistrate or the district court provided a

“substantive ruling, whether ‘affirming, modifying, or reversing’

the ALJ’s order.”            We found that the court merely “remanded for




     9
      42 U.S.C. § 205(g).

     10
          Id.
     11
          208 F.3d 517 (5th Cir. 2000).

                                            6
further consideration.”        Thus, we concluded that the remand order

failed to satisfy the requirements of § 405(g), sentence four.

      Here, both the magistrate and the district court provided a

substantive ruling. The district court set forth the legal reasons

supporting its conclusions.            In addition, the district court

stated: “[T]he final decision of the Commissioner is VACATED and

this case is REMANDED for further proceedings not inconsistent with

this judgment.”       We find no ambiguity to the district court’s

ruling.

                                       C

      Finally, Bordelon contends that the district court abused its

discretion    when    it   remanded    his   benefits    claim    for   further

proceedings.      The magistrate recommended an immediate award of

benefits. The district court disagreed, noting that the magistrate

provided no authority to support his conclusion that, because the

hypothetical question posed to the vocational expert was defective,

reversal of the ALJ’s decision was warranted and remand should only

be for the calculation of benefits.

      We review the district court’s order of remand, under 42

U.S.C. § 205(g), fourth sentence, for an abuse of discretion,12 and

      12
       Both parties contend that the proper standard of review is an abuse of
discretion, although the government points out that this Court has yet to address
the proper standard of review. On two occasions, we have considered remands
under § 205(g), fourth sentence.     In Randall v. Sullivan, after citing the
standard of review generally applicable to review of summary judgment, we did not
address whether the same de novo review applied to a district court’s exercise
of statutory discretion under § 405(g), fourth sentence. In Istre, we considered
whether the remand order met the requirements of § 405(g), and thus had no reason
to address the appropriate standard of review.

                                       7
we find none.       The magistrate determined that the hypothetical

questions posed by the vocational expert did not incorporate all of

Bordelon’s disabilities recognized by the ALJ. The magistrate then

concluded that the record lacked substantial evidence to support

the ALJ’s decision and, thus, reversed and ordered benefits paid.

The district court agreed that the ALJ’s hypothetical questions to

the vocational expert were improper but rejected the magistrate’s

proposed remedy.      Instead, the district court remanded the matter

to the ALJ for a proper determine of Bordelon’s eligibility for

benefits under properly constructed hypothetical questions.

      In Bowling v. Shalala, we held that “[u]nless the hypothetical

question posed to the vocational expert by the ALJ can be said to

incorporate reasonably all disabilities of the claimant recognized

by the ALJ, . . . a determination of non-disability based on such

a defective question cannot stand.”13 Here, both the district court

and the magistrate found both hypotheticals defective.                 Neither

question included Bordeleon’s severe mental impairment of paranoid

schizophrenia.     By remanding the matter for a proper hypothetical



      We hold that the proper standard of review of a district court’s remand
order under § 405(g), fourth sentence, is for an abuse of discretion. This is
consistent with our prior, unpublished cases, see Davis v. Apfel, No. 00-30373,
2000 WL 1598082, at *1 (5th Cir. Oct. 3, 2000), as well as our cases reviewing
remand orders under § 405(g), sixth sentence. See Salinas v. Schweiker, 662 F.2d
345, 347 n.2 (5th Cir. 1981); Allen v. Schweiker, 642 F.2d 799, 802 (5th Cir.
1981); Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994). In addition, §
405(g), fourth sentence, grants courts wide discretion to dispose of matters
“with or without remanding the cause for a rehearing.” 42 U.S.C. § 205(g).

      13
         36 F.3d 431, 436 (5th Cir. 1994); see also Boyd v. Apfel, 239 F.3d 698,
707-08 (5th Cir. 2001).

                                       8
question, the district court did not abuse its discretion.               In

fact, this is the precise remedy followed in Bowling and Boyd.14

                                    III

     Accordingly, Bordelon’s appeal of the district court’s order

vacating and remanding his claim for social security benefits is

AFFIRMED.




     14
       Bowling, 36 F.3d at 436-38 (remand ordered where ALJ’s questioning of
vocational expert was defective); Boyd, 239 F.3d at 708 (remand order due to
ALJ’s reliance on defective hypothetical question).

                                     9
