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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 99-30136
_______________
ELMO ISTRE,
Plaintiff-Appellant,
VERSUS
KENNETH S. APFEL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
April 13, 2000
Before DAVIS, CYNTHIA HOLCOMB
that the remand comported with neither type
HALL,* and SMITH, Circuit Judges.
of remand approved by the Social Security
Act, we vacate and remand to the district
JERRY E. SMITH, Circuit Judge:
court for further consideration.
Elmo Istre appeals an order of the district
I.
court remanding his disability-benefits claim
Istre applied for supplemental security in-
for further consideration by the Social Security
come disability benefits. An administrative law
Appeals Council. Because we agree with Istre
judge ("ALJ") determined that Istre suffers
from chronic obstructive lung disease and
chronic lower back pain, which are severe
*
impairments, but, relying on the testimony of
1
Circuit Judge of the Ninth Circuit, sitting by
a vocational expert, held that Istre is not fully
2
designation.

disabled, because he is able to perform certain
court independently reviewed the record,
sedentary work functions.
adopted the magistrate judge's report, denied
Istre's summary judgment motion, and
Istre requested review of the ALJ's ruling
remanded, purportedly pursuant to the fourth
by the Appeals Council and provided addition-
sentence of § 405(g), for further agency
al evidenceSSa psychological assessment and
action.
hospital records. The Appeals Council denied
review, noting that its consideration of the new
II.
evidence did not provide a basis for altering
In this contextSSthe appeal by a
the ALJ's determination. This rendered the
complainant to the district court of a denial of
ALJ's determination the final decision of the
benefits by the Appeals CouncilSSa district
Social Security Commissioner.
court may remand to the Appeals Council in
only two circumstances:
Istre sued, seeking review of the
Commissioner's decision. After the
[W]e [have] examined closely the
Commissioner answered, Istre moved for
language of § 405(g) and identified two
summary judgment, requesting reversal of the
kinds of remands under that statute:
Commissioner's decision and the award of
(1) remands pursuant to the fourth
benefits, or remand to the agency for further
sentence, and (2) remands pursuant to
consideration of the evidence he had submitted
the sixth sentence. The fourth sentence
to the Appeals Council. In response, the
of § 405(g) authorizes a court to enter a
Commissioner moved for remand, pursuant to
judgment affirming, modifying, or
the fourth sentence of 42 U.S.C. § 405(g), for
reversing the decision of the Secretary,
further administrative proceedingsSSnamely,
with or without remanding the case for
for the ALJ "to obtain consultative general
rehearing. . . .
medical and mental status examinations with
pulmonary function studies and psychological
The sixth sentence of § 405(g) . . .
testing and functional assessments." The
describes an entirely different kind of
Commissioner desired reevaluation of Istre's
remand. The district court does not af-
residual functional capacity in light of his
firm, modify, or reverse the Secretary's
mental impairments, which included
decision; it does not rule in any way as
alcoholism. Istre then opposed the motion for
to the correctness of the administrative
remand and requested reversal of the
determination. Rather, the court
Commissioner's decision, with any remand for
remands because new evidence has
the sole purpose of determining the amount of
come to light that was not available to
benefits.
the claimant at the time of the
administrative proceeding and that
The magistrate judge recommended
evidence might have changed the
granting the Commissioner's motion for
outcome of the prior proceedings. The
remand and denying Istre's summary judgment
statute provides that following a
motion, because Istre had "failed to prove his
sentence six remand, the Secretary must
entitlement to benefits by a clear
return to the district court to file with
preponderance of the evidence." The district
the court any such additional or
2

modified findings of fact and decision,
to the agency "for all further
and a transcript of the additional record
proceedings."
and testimony upon which his action in
modifying or affirming was based.
Id. at 98-99 (internal citations and some
quotation marks omitted). Hence, certain
. . .
requisites must be met if a remand is to fit
under sentence four or sentence six, and the
. . . While we did not state explicitly
Supreme Court has explained firmly that, if the
[in our former cases] that these were the
remand does not fit into either category, it is
only kinds of remands permitted under
not proper. See also Richard v. Sullivan, 955
the statute, we do so today.
F.2d 354 (5th Cir. 1992) (following Melkon-
yan).
Melkonyan v. Sullivan, 501 U.S. 89, 97-99
(1991) (internal citations and quotation marks
Accordingly, we must decide whether the
omitted).
district court's remand fits within sentence
four or six. The record illustrates that it does
The Court also specified requirements for a
not fit within sentence six. The Commissioner
remand under these two sentences of § 405(g)
explicitly asked for a determination under sen-
to be considered legally effective:
tence four, and the magistrate judge and
district judge explicitly granted remand under
The parties agree that the remand order
that sentence. The orders contained no
in this case was not entered pursuant to
explicit findings that good cause existed to
sentence four, as the District Court did
consider new evidence or that the court
not affirm, modify, or reverse the
retained jurisdiction. The remand did not
Secretary's decision. We concur. The
therefore occur properly under sentence six.
District Court did not make any
substantive ruling; it merely returned the
Attention then turns to sentence four. In
case to the agency for disposition,
Melkonyan, the district court had issued an
noting that both parties agreed to this
order stating, in its entirety, that "[d]efendant's
course.
motion to remand, concurred in by plaintiff, is
granted. The matter is remanded to the
. . .
Secretary for all further proceedings." 501
U.S. at 92. The Court found that this order
. . . [T]he sixth sentence of § 405(g)
did not satisfy the requirements of sentence
requires a showing of "good cause" for
four, because "the District Court did not make
the failure to present the additional evi-
any substantive ruling; it merely returned the
dence in the prior proceeding[; here] the
case to the agency for disposition." Id. at 98.
District Court did not rule explicitly that
such a showing had been made. The
The instant case presents a factually
Secretary also notes that the District
indistinguishable situation. The district court
Court did not manifest any intent to re-
ordered that "[f]or the reasons stated in the
tain jurisdiction, as would be the case
Report and Recommendation of the
under sentence six, but rather remanded
Magistrate Judge . . . It is [ordered] that . . .
3

the Commissioner's Motion for Remand be
had the effect of "dismiss[ing] Frizzell's claim
[granted] and this matter be [remanded]." The
for lack of jurisdiction." Id. at 255-57.
magistrate judge's report explained that "the
Commissioner wants a remand for the purpos-
Next came Luna v. Department of Health
es of further developing the record and to
& Human Servs., 948 F.2d 169 (5th Cir.
properly evaluate Plaintiff's alcoholism in the
1991), and Bertrand v. Sullivan, 976 F.2d 977
full context of his health status." The
(5th Cir. 1992). In these two cases, this court
magistrate judge suggested, and the district
held that orders remanding to the Secretary for
judge provided, no substantive ruling, whether
further consideration were final sentence-four
"affirming, modifying or reversing" the ALJ's
remands, either because the parties said they
order; the court merely remanded for further
were or because they did not fit within the
consideration. This does not satisfy the
confines of a sentence-six remand.1
requirements of sentence four.
Frizzell,
Luna
and
Bertrand
are
For the proposition that a sentence-four
distinguishable from the instant matter in that
remand was appropriate under these
there, the issue whether the remand was a
circumstances, the Commissioner cites Shalala
proper sentence-four remand was not before
v. Schaefer, 509 U.S. 292, 297 (1993), in
the court; in each case, the court merely
which the Court did hold the district court to
assumed a proper sentence-four remand.2 Any
have issued a proper sentence-four remand.
attempt to infer from these cases an
The remand order issued by the district court
understanding that sentence four provides a
therein, however, explicitly reversed the
"catch-all" provision for district court remands
previous decision of the Secretary. That
would be error. Where, as here, the question
reversal placed the remand squarely within the
dictates of sentence four; it is lacking here.
1
1
See Luna, 948 F.2d at 170-71 (explaining that
III.
2
"[t]he Secretary claims that the instant case
The Commissioner, to the contrary, argues
3
involves a fourth-sentence remand," and then
that certain precedent of this circuit leads to
4
analyzing it as one) (emphasis added); Bertrand,
the conclusion that a valid sentence-four re-
5
976 F.2d at 979 (explaining that the remand did
mand has occurred here. We disagree.
6
not fulfill the requirements of a sentence-six
7
remand, noting that Melkonyan allowed only for
The line of authority to which the
8
sentence-four and sentence-six remands, and then
Commissioner refers begins with Frizzell v.
9
holding that "it follows, then, from Melkonyan,
Sullivan, 937 F.2d 254 (5th Cir. 1991), which
10
that the remand here can only be a fourth-sentence
issued a few months after Melkonyan without
11
remand" (without considering the possibility that
speaking to it. In Frizzell, we held that a
12
the remand failed the tests of both sentences)).
district court's order to "remand Frizzell's
2
1
See Frizzell, 927 F.2d at 257 (explaining that
case to the Secretary a second time for further
2
"Frizzell concedes this case involves a sentence
development of the record concerning
3
four remand"); Luna, 948 F.2d at 170 (same); Ber-
Frizzell's ability to do past relevant work" was
4
trand, 976 F.2d at 979 (illustrating that the
a final order, because orders under sentence
5
question was what type of proper remand was
four are always final, and because the order
6
before the court, not whether there was a proper
7
remand at all).
4

is whether any proper remand has occurred,
these authorities do not require us to say that
a proper remand has occurred.
Because the Social Security Act permits
remands from the district court to the Appeals
Council in only two instances, and because the
remand in this case comports with neither, we
VACATE the remand order of the district
court and REMAND this case to the district
court for further proceedings.
5