                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     September 5, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    RU BY BR IGGS,

                Plaintiff-Appellant,
                                                          No. 06-7002
    v.                                              (D.C. No. 05-CV -145-S)
                                                          (E.D. Okla.)
    JO A NN E B. BA RN HA RT,
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.


         Ruby Briggs appeals from an order of the district court granting the

Commissioner’s motion to remand this case to the agency for further

administrative proceedings. Because the remand w as pursuant to sentence four of

42 U.S.C. § 405(g), the order is final and appealable and we have jurisdiction to




*
       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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
consider this appeal. See Sullivan v. Finkelstein, 496 U.S. 617, 629-31 (1990).

W e vacate the order and remand the case to the district court for further

proceedings consistent with this order and judgment.

                                    Background

      M s. Briggs, a high-school graduate, was honorably discharged from the

United States Navy in 1998 for medical reasons when she was 35-years old. Prior

to her service in the Navy, she served in the United States Army and is a veteran

of the Gulf W ar. She has not worked since her discharge.

      W hile in the military, M s. Briggs began experiencing numerous physical

ailments, including Bell’s palsy, choking and difficulty sw allowing, severe daily

headaches, w eakness in her knees due to an on-ship injury, and osteoarthritis. A s

a result of her deteriorating physical condition, she claims that she also began

experiencing recurrent severe depression and anxiety.

      In 2002, M s. Briggs filed for social security disability benefits on the basis

of her degenerative joint disease, severe depression, and anxiety. Her amended

application alleged an onset date of February 4, 2000. Following the

administrative denial of her application, she requested and appeared at a hearing

before an administrative law judge (ALJ) in January 2004. In a decision dated

July 23, 2004, the ALJ found that she was disabled and entitled to benefits as of

June 1, 2003. After the Appeals Council denied her request for review of the




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ALJ’s denial of the earlier onset date, she filed a complaint in federal district

court.

                              The District Court’s O rder

         After filing an answer, the Commissioner filed a motion requesting a

remand under sentence four of 42 U.S.C. § 405(g) (a “sentence four” remand) 1 to

the ALJ to reevaluate whether M s. Briggs’ mental impairments met the

requirements of Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P., App. I,

Listing § 12.04, or any other listed impairment at step three of the five-step

sequential evaluation process as described in Williams v. Bowen, 844 F.2d 748,

750-52 (10th Cir. 1988). She further requested that the ALJ undertake step four

and five analyses for the period of February 4, 2000 through June 1, 2003, if

necessary. M s. Briggs opposed the request, asking instead for an outright award

of benefits on the ground that she was disabled at step three as of February, 2000.

Alternatively, citing bias, she argued that if the case was remanded it should be

assigned to a different ALJ.

         In its order, the district court found that a remand was “appropriate as to

the ALJ’s legal error in failing to conduct a step four or step five analysis. . . .”

Aplt. App., Vol. 1, at 40. The court, however, found that the C ommissioner’s



1
      “The [district] court may remand the case after passing on its merits and
issuing a judgment affirming, reversing, or modifying the [C ommissioner’s]
decision, a sentence four remand. Nguyen v. Shalala, 43 F.3d 1400, 1403
(10th Cir. 1994) (quotation omitted).

                                           -3-
motion for reconsideration at step three was “not appropriate,” because the

Commissioner asked for a “reevaluation” of the evidence, instead of a

determination on the merits of the ALJ’s step three evaluation. Id. at 39. The

court further found that the Commissioner did not “suggest in her motion that the

ALJ committed any legal error in evaluating [M s. Briggs] alleged impairment.”

Id. at 39-40. The court also denied the request for a different ALJ, and entered

judgment in favor of M s. Briggs and against the Commissioner.

       M s. Briggs appeals the district court’s denial of her request for an

immediate award of benefits at step three as of February 2000. She also appeals

its ruling denying her request for a new ALJ. The Commissioner argues against

an immediate award of benefits or the assignment of a new ALJ, but does

continue to argue for a new step-three analysis on remand on the basis that the

ALJ misapplied the law concerning the severity and onset date of M s. Briggs’

disability.

       W e do not address the merits of the parties’ arguments on appeal, because

the case must be remanded to the district court for a substantive ruling on the

merits of the ALJ’s decision.

                                Sentence Four Remand

       “By statute, the district court’s authority to remand a social security case is

limited to three carefully delineated circumstances.” Nguyen v. Shalala, 43 F.3d

1400, 1403 (10th Cir. 1994). One of those “carefully delineated circumstances”

                                          -4-
is set forth in sentence four of 42 U.S.C. § 405(g), which 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 rehearing.”

      W e have interpreted sentence four to mean that the court may remand the

case only after passing on its merits and issuing a judgment affirming, reversing,

or modifying the Commissioner’s decision. Nguyen, 43 F.3d at 1403; cf.

Pettyjohn v. Shalala, 23 F.3d 1572, 1575 (10th Cir. 1994) (EAJA attorney fees

case holding that “[b]ecause the district court’s order was a substantive reversal

based upon the correctness of the [Commissioner’s] decision, it was a sentence

four remand”).

      In this case, the district court’s order remanding the case to the agency did

not pass on the merits of the Commissioner’s decision, other than to order step

four and five evaluations. M ore specifically, it never addressed the merits of the

ALJ’s decision concerning the severity and onset date of M s. Briggs’ disability,

whether the decision was supported by substantial evidence, or whether the ALJ

applied the correct legal standards at each of the five-step analyses. See Nguyen,

43 F.3d at 1403 (describing review standards and explaining the requirement that




                                         -5-
district court rule on the merits.) Therefore, it was not a proper sentence four

              2
remand. Id.

      The order and judgment of the district court are VAC ATED and we

R EM A N D the case to the district court for a determination on the merits of the

onset date and severity of M s. Briggs’ impairments.


                                               Entered for the Court


                                               Timothy M . Tymkovich
                                               Circuit Judge




2
       Admittedly, a sentence four remand simply to reevaluate evidence is
improper. See Nguyen, 43 F.3d at 1403. But despite the Commissioner’s
unfortunate choice of words in her motion, the district court was still required to
rule on the merits, including the ALJ’s step-three determination, as part of its
order.

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