# SSR 91-2c: SSR 91-2c: SECTIONS 202(e), 205(g), AND 223(d) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(e), 405(g), AND 423(d)) DISABLED WIDOW'S INSURANCE BENEFITS -- IMMEDIATE APPEALABILITY OF A COURT REMAND ORDER

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URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_91_2c

## Section

- **Citation:** SSR 91-2c
- **Heading:** SSR 91-2c: SECTIONS 202(e), 205(g), AND 223(d) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(e), 405(g), AND 423(d)) DISABLED WIDOW'S INSURANCE BENEFITS -- IMMEDIATE APPEALABILITY OF A COURT REMAND ORDER
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / OASI / Widow(er)'s Insurance benefits / SSR 91-2c

## Text

SSR 91-2c

EFFECTIVE/PUBLICATION DATE: 03/18/91

20 CFR 404.1577, 404.1578(a)(1), and Regulations No. 4, Subpart P,
Appendix 1

Sullivan v. Finkelstein, _____ U.S. _____, 110 S.Ct. 2658 (1990)

WHITE, Supreme Court Justice:

We granted certiorari to decide whether the Secretary of Health and Human
Services may immediately appeal a district court order effectively
declaring invalid regulations that limit the kinds of inquiries that must
be made to determine whether a person is entitled to disability insurance
benefits and remanding a claim for benefits to the Secretary for
consideration without those restrictions. We hold that the Secretary may
appeal such an order as a "final decision" under 28 U.S.C. §
1291. [1]

I

Respondent Finkelstein is the widow of a wage earner who died in 1980
while fully insured under Title II of the Social Security Act, 49 Stat.
622, as amended, 42 U.S.C. § et seq . (1982 ed.). In 1983,
respondent applied to the Social Security Administration for widow's
disability benefits, claiming that her heart condition made her disabled
within the meaning of the section of the Social Security Act providing for
surviving spouses' disability insurance benefit payments, § 223, as added,
70 Stat. 815, and as amended, 42 U.S.C. §§ 423(d)(1)(A), (d)(2)(B) (1982
ed. and Supp. V).

Section 423(d)(2)(B) states that a widow shall not be determined to be
disabled unless her impairment is of a level of severity which, "under
regulations prescribed by the Secretary (of Health and Human Services),"
is deemed sufficient to preclude an individual from engaging in any
gainful activity. Under regulations promulgated by the Secretary, 20 CFR
§§ 404.1577, 404.1578(a)(1) (1989), a surviving spouse is deemed disabled
only if the spouse suffers from a physical or mental impairment meeting or
equaling the severity of an impairment included in the Secretary's Listing
of Impairments located at Appendix 1 to 20 CFR pt. 404, subpt. P (1989)
from engaging in any
gainful activity. Under regulations promulgated by the Secretary, 20 CFR
§§ 404.1577, 404.1578(a)(1) (1989), a surviving spouse is deemed disabled
only if the spouse suffers from a physical or mental impairment meeting or
equaling the severity of an impairment included in the Secretary's Listing
of Impairments located at Appendix 1 to 20 CFR pt. 404, subpt. P (1989).
If the surviving spouse's impairment does not meet or equal one of the
listed impairments, the Secretary will not find the spouse disabled; in
particular, the Secretary will not consider whether the spouse's
impairment nonetheless makes the spouse disabled, given the spouse's age,
education, and work experience.

The Secretary's practice for spouses' disability insurance benefits thus
differs significantly from the regulations for determining whether a wage
earner is entitled to disability insurance benefits. For wage earners, the
Secretary has established a "five-step sequential evaluation process for
determining whether a person is disabled." Bowen v. Yuckert , 482
U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987). Under that
five-step process, even if a wage earner's impairment does not meet or
equal one of the listed impairments, the wage earner may nonetheless be
entitled to disability insurance benefits if the Secretary determines that
his "impairment in fact prevents him from working." Sullivan v.
Zebley , 493 U.S. _____, _____, 110 S.Ct. 885, 893, 107 L.Ed.2d 967
290, 96 L.Ed.2d 119 (1987). Under that
five-step process, even if a wage earner's impairment does not meet or
equal one of the listed impairments, the wage earner may nonetheless be
entitled to disability insurance benefits if the Secretary determines that
his "impairment in fact prevents him from working." Sullivan v.
Zebley , 493 U.S. _____, _____, 110 S.Ct. 885, 893, 107 L.Ed.2d 967
(1990). The Secretary maintains that the difference between the wage
earner regulations and the surviving spouse regulations is supported by a
difference between the two pertinent statutory definitions of disability.
Compare 42 U.S.C. § 423(d)(2)(A) with § 423(d)(2)(B).

Respondent's application for benefits was denied on the ground that her
heart condition did not meet or equal a listed impairment. After
exhausting administrative remedies, respondent sought judicial review of
the Secretary's decision in the United States District Court for the
District of New Jersey, invoking § 205(g) of the Social Security Act, as
amended, 53 Stat. 1370, 42 U.S.C. § 405(g) (1982
ed. [2] The District Court
sustained the Secretary's conclusion that respondent did not suffer from
an impairment that met or equaled a listed impairment. See App. to Pet.
for Cert. 16a. The District Court nonetheless concluded that "the case
must be remanded to the Secretary," id , at 17a, because the record
was "devoid of any findings" regarding respondent's inability to engage in
any gainful activity even though her impairment was not equal to one of
the listed impairments, see ibid .
impairment that met or equaled a listed impairment. See App. to Pet.
for Cert. 16a. The District Court nonetheless concluded that "the case
must be remanded to the Secretary," id , at 17a, because the record
was "devoid of any findings" regarding respondent's inability to engage in
any gainful activity even though her impairment was not equal to one of
the listed impairments, see ibid .

The Court of Appeals for the Third Circuit dismissed the Secretary's
appeal for lack of jurisdiction. 869 F.2d 215 (1989). The Court of Appeals
relied on its past decisions holding that "remands to administrative
agencies are not ordinarily appealable." Id ., at 217 (citation
omitted). Although the Court of Appeals acknowledged an exception to that
rule for cases" in which an important legal issue is finally resolved and
review of that issue would be foreclosed 'as a practical matter' if an
immediate appeal were unavailable," ibid . (citation omitted), that
exception was deemed inapplicable in this case because the Secretary might
persist in refusing benefits even after consideration of respondent's
residual functional capacity on remand, and the District Court might
thereafter order that benefits be granted, thereby providing the Secretary
with an appealable final decision. Id ., at 220. The Court of
Appeals conceded that the Secretary might not be able to obtain review at
a later point if he concluded on remand that respondent was entitled to
benefits based on her lack of residual functional capacity, but it
believed this argument for immediate appealability to be foreclosed by a
prior decision of the Circuit. Ibid . We granted certiorari, 493
U.S. _____, 110 S.Ct. 862, 107 L.Ed.2d 947 (1990).

II
d that the Secretary might not be able to obtain review at
a later point if he concluded on remand that respondent was entitled to
benefits based on her lack of residual functional capacity, but it
believed this argument for immediate appealability to be foreclosed by a
prior decision of the Circuit. Ibid . We granted certiorari, 493
U.S. _____, 110 S.Ct. 862, 107 L.Ed.2d 947 (1990).

II

We begin by noting that the issue before us is not the broad question
whether remands to administrative agencies are always immediately
appealable. There is, of course, a great variety in remands, reflecting in
turn the variety of ways in which agency action may be challenged in the
district courts and the possible outcomes of such
challenges. [3] The question
before us rather is whether orders of the type entered by the District
Court in this case are immediately appealable by the Secretary. It is
necessary therefore to consider precisely what the District Court held and
may it remanded this case to the Secretary.

Although the District Court sustained the Secretary's conclusion that
respondent did not suffer from an impairment that met or equaled the
severity of a listed impairment, it concluded that the Secretary's
ultimate conclusion that respondent was not disabled could not be
sustained because other medical evidence suggested that respondent might
not be able to engage in any gainful
activity. [4] Considering it
"anomalous" that an impairment actually leaving respondent without the
residual functional capacity to perform any gainful activity could be
insufficient to warrant benefits just because it was not equal to one of
the listed impairments, the District Court directed the Secretary "to
inquire whether [respondent] may or may not engage in any gainful
activity, as contemplated by the Act." App. to Pet. for Cert. 18a
rment actually leaving respondent without the
residual functional capacity to perform any gainful activity could be
insufficient to warrant benefits just because it was not equal to one of
the listed impairments, the District Court directed the Secretary "to
inquire whether [respondent] may or may not engage in any gainful
activity, as contemplated by the Act." App. to Pet. for Cert. 18a. The
District Court's order thus essentially invalidated, as inconsistent with
the Social Security Act, the Secretary's regulations restricting spouses'
disability insurance benefits to those claimants who can show that they
have impairments with "specific clinical findings that are the same . . .
or are medically equivalent to" one of the listed impairments, 20 CFR §
404.1578(a)(1) (1989). Cf. Heckler v. Campbell , 461 U.S. 458,
465-466, 103 S.Ct. 1952, 1956, 76 L.Ed.2d 66 (1983). The District Court
stated that it was "remand[ing] the case to the Secretary because the
record contained no findings about the functional impact of respondent's
impairment; in effect it ordered to Secretary to address respondent's
ailment without regard for the regulations that would have precluded such
consideration. The District Court's order thus reversed the Secretary's
conclusion that respondent was not disabled and remanded for further
consideration of respondent's medical condition.

Once the nature of the District court's action is made clear, it becomes
clear how this action fits into the structure of § 405(g). The first
sentence of § 405(g) provides that an individual denied benefits by a
final decision of the Secretary may obtain judicial review of that
decision by filing "a civil action" in federal district court. The use of
the term "a civil action" suggests that at least in the context of §
405(g), each final decision of the Secretary will be reviewable by a
separate piece of litigation. [5] The fourth and eighth sentences of § 405(g) buttress this conclusion
its by a
final decision of the Secretary may obtain judicial review of that
decision by filing "a civil action" in federal district court. The use of
the term "a civil action" suggests that at least in the context of §
405(g), each final decision of the Secretary will be reviewable by a
separate piece of litigation. [5] The fourth and eighth sentences of § 405(g) buttress this conclusion. The
fourth sentence states that in such a civil action, the district court
shall have the power to enter "a judgment affirming, modifying, or
reversing the decision of the Secretary, with or without remanding the
cause for a rehearing." (Emphasis added.) This sentence describes the
action that the District Court actually took in this case. In particular,
although the fourth sentence clearly foresees the possibility that a
district court may remand a cause to the Secretary for rehearing (as the
District Court did here), nonetheless such a remand order is a "judgment"
in the terminology of § 405(g). What happened in this case is that the
District Court entered "a judgment . . . reversing the decision of the
Secretary, with . . . remanding the cause for a rehearing." The District
Court's remand order was unquestionably a "judgment," as it terminated the
civil action challenging the Secretary's final determination that
respondent was not entitled to benefits, set aside that determination, and
finally decided that the Secretary could not follow his own regulations in
considering the disability issue. Furthermore, should the Secretary on
remand undertake the inquiry mandated by the District court and award
benefits, there would be grave doubt, as the Court of appeals recognized,
whether he could appeal his own order. Thus it is that the eighth sentence
of § 405(g) provides that "(t)he judgment of the court shall be
final except that it shall be subject to review in the same manner as
a judgment in other civil actions." (Emphasis added.)
the inquiry mandated by the District court and award
benefits, there would be grave doubt, as the Court of appeals recognized,
whether he could appeal his own order. Thus it is that the eighth sentence
of § 405(g) provides that "(t)he judgment of the court shall be
final except that it shall be subject to review in the same manner as
a judgment in other civil actions." (Emphasis added.)

Respondent makes several arguments countering this construction of §
405(g) and of the District Court's order, none of which persuades us.
First, respondent argues that the remand in this case was ordered not
pursuant to the fourth sentence of § 405(g), but under the sixth sentence
of that section, which states in pertinent part that the District Court
may "at any time order additional evidence to be taken before the
Secretary, 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." Respondent points out
that the District Court stated that it was ordering a remand because the
evidence on the record was insufficient to support the Secretary's
conclusion and that further factfinding regarding respondent's ailment was
necessary. We do not agree with respondent that the District Court's
action in this case was a "sixth-sentence remand." The sixth sentence of §
405(g) plainly describes an entirely different kind of remand, appropriate
when the district court learns of evidence not in existence or available
to the claimant at the time of the administrative proceeding that might
have changed the outcome of that
proceeding. [6]
ee with respondent that the District Court's
action in this case was a "sixth-sentence remand." The sixth sentence of §
405(g) plainly describes an entirely different kind of remand, appropriate
when the district court learns of evidence not in existence or available
to the claimant at the time of the administrative proceeding that might
have changed the outcome of that
proceeding. [6]

For the same reason, we reject respondent's argument, based on the
seventh sentence of § 405(g), that the district court may enter an
appealable final judgment upon reviewing the Secretary's postremand
"additional or modified findings of fact and decision." The postremand
review conducted by the District Court under the seventh sentence refers
only to cases that were previously remanded under the sixth sentence. The
seventh sentence states that the district court may review "(s)uch
additional or modified findings of fact," a reference to the second half
of the sixth sentence of § 405(g), which requires that "the Secretary
shall, after the case is remanded, and after hearing such additional
evidence if so ordered, modify or affirm his findings of fact or his
decision, or both, and shall file with the court any such additional and
modified findings of fact and decision. . . ." The phrase "such additional
evidence" refers in turn to the "additional evidence" mentioned in the
first half of the sixth sentence that the district court may order the
Secretary to take in a sixth-sentence remand. See supra , at _____.
But as the first half of the sixth sentence makes clear, the taking of
this additional evidence may be ordered only upon a showing that there is
material new evidence. The postremand judicial review contemplated by the
seventh sentence of § 405(g) does not fit the kind of remand ordered by
the District Court in this case.
ecretary to take in a sixth-sentence remand. See supra , at _____.
But as the first half of the sixth sentence makes clear, the taking of
this additional evidence may be ordered only upon a showing that there is
material new evidence. The postremand judicial review contemplated by the
seventh sentence of § 405(g) does not fit the kind of remand ordered by
the District Court in this case.

Respondent also argues that the eighth sentence of § 405(g), providing
that the judgment of the district court "shall be final except that it
shall be subject to review in the same manner as a judgment in other civil
actions," does not compel the conclusion that a judgment entered pursuant
to the fourth sentence is immediately appealable. In respondent's view,
Congress used the term "final" in the eighth sentence only to make clear
that a court's decision reviewing agency action could operate as law of
the case and res judicata. Cf. City of Tacoma v. Taxpayers of
Tacoma , 357 U.S. 320, 336, 78 S.Ct. 1209, 1218, 2 L.Ed.2d 1345 (1958).
But even if it is true that Congress used the term "final" to mean
"conclusively decided," this reading does not preclude the construction of
"final" to include "appealable," a meaning with which "final" is usually
coupled. Nor does respondent consider the significance of Congress' use of
the term "judgment" to describe the action taken by the District Court in
this case. [7] Although
respondent argues that the words "final decisions," as used in 28 U.S.C. §
1291 encompass no more than what was meant by the terms "final judgments
and decrees" in the predecessor statute to § 1291, respondent recognizes
that "final judgments" are at the core of matters appealable under § 1291,
and respondent does not contest the power of Congress to define a class of
orders as "final judgments" that by inference would be appealable under §
1291. Cf. Sears, Roebuck & Co. v. Mackey , 351 U.S. 427, 434, 76
S.Ct. 895, 899, 100 L.Ed. 1297 (1956)
es" in the predecessor statute to § 1291, respondent recognizes
that "final judgments" are at the core of matters appealable under § 1291,
and respondent does not contest the power of Congress to define a class of
orders as "final judgments" that by inference would be appealable under §
1291. Cf. Sears, Roebuck & Co. v. Mackey , 351 U.S. 427, 434, 76
S.Ct. 895, 899, 100 L.Ed. 1297 (1956). This is what Congress has done in
the fourth sentence of §
405(g). [8]

More generally, respondent argues that a power in the district court to
remand to an agency is always incident to the power to review agency
action and that § 405(g) only expanded the district courts' equitable
powers; therefore, she insists, it is improper to construe § 405(g) as a
limit on the district courts' power to remand. This argument misapprehends
what Congress sought to accomplish in § 405(g). The fourth sentence of §
405(g) does not "limit" the district courts' authority to remand. Rather,
the fourth sentence directs the entry of a final, appealable judgment even
though that judgment may be accompanied by a remand order. The fourth
sentence does not require the district court to choose between entering a
final judgment and remanding; to the contrary, it specifically provides
that a district court may enter judgment "with or without remanding the
cause for a rehearing."

Finally, respondent argues that we already decided last Term, in Sullivan v. Hudson , 490 U.S. _____, 109 S.Ct. 2248, 104 L.Ed.2d 941
r. The fourth
sentence does not require the district court to choose between entering a
final judgment and remanding; to the contrary, it specifically provides
that a district court may enter judgment "with or without remanding the
cause for a rehearing."

Finally, respondent argues that we already decided last Term, in Sullivan v. Hudson , 490 U.S. _____, 109 S.Ct. 2248, 104 L.Ed.2d 941
(1989), that a remand order of the kind entered in this case is not
appealable as a final decision. Although there is language in Hudson supporting respondent's interpretation of that case, we do
not find that language sufficient to sustain respondent's contentions
here. In Hudson , we held that under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d)(1)(A), a federal court may award a Social
Security claimant attorney's fees for representation during administrative
proceedings held pursuant to a district court order remanding the action
to the Secretary. We were concerned there with interpreting the term "any
civil action" in the EAJA, [9] not with deciding whether a remand order could be appealed as a "final
decision" under 28 U.S.C. § 1291. We noted in Hudson that the
language of § 2412(d)(1)(A) must be construed with reference to the
purpose of the EAJA and the realities of litigation against the
Government. The purpose of the EAJA was to counterbalance the financial
disincentives to vindicating rights against the Government through
litigation; given this purpose, we could not believe that Congress would
"throw the Social Security claimant a lifeline that it knew was a foot
short" by denying her attorney's fees for the mandatory proceedings on
remand. Hudson, supra , at _____, 109 S.Ct., at 2256. We also
recognized that even if a claimant had obtained a remand from the district
court, she would not be a "prevailing party" for purposes of the EAJA
until the result of the administrative proceedings held on remand was
known. 490 U.S., at _____, 109 S.Ct., at _____
t" by denying her attorney's fees for the mandatory proceedings on
remand. Hudson, supra , at _____, 109 S.Ct., at 2256. We also
recognized that even if a claimant had obtained a remand from the district
court, she would not be a "prevailing party" for purposes of the EAJA
until the result of the administrative proceedings held on remand was
known. 490 U.S., at _____, 109 S.Ct., at _____. We therefore concluded
that for purposes of the EAJA, the administrative proceedings on remand
"should be considered part and parcel of the action for which fees may be
awarded." Id ., at _____, 109 S.Ct., at 2255. We did not say that
proceedings on remand to an agency are "part and parcel" of a civil action
in federal district court for all purposes, and we decline to do so
today.

Accordingly, the judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings consistent with this opinion.

It is so ordered .

Justice White delivered the opinion of the Court, in which Chief Justice
Rehnquist and Justices Brennan, Marshall, Stevens, O'Connor, and Kennedy
joined, and in which Justice Scalia joined except as to n.8. Justice
Scalia filed an opinion concurring in part. Justice Blackmun filed a
concurring opinion.

[1] Title 28 U.S.C. § 1291
provides that "(t)he courts of appeals . . . shall have jurisdiction of
appeals from all final decisions of the district courts . . . except where
a direct review may be had in the Supreme Court."

[2] Title 42 U.S.C. § 405(g)
(1982 ed.) provides:
cept as to n.8. Justice
Scalia filed an opinion concurring in part. Justice Blackmun filed a
concurring opinion.

[1] Title 28 U.S.C. § 1291
provides that "(t)he courts of appeals . . . shall have jurisdiction of
appeals from all final decisions of the district courts . . . except where
a direct review may be had in the Supreme Court."

[2] Title 42 U.S.C. § 405(g)
(1982 ed.) provides:

"Any individual, after any final decision of the Secretary made after a
hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Secretary may allow. Such
action shall be brought in the district court of the United States for the
judicial district in which the plaintiff resides, or has his principal
place of business, or, if he does not reside or have his principal place
of business within any such judicial district, in the United States
District Court for the District of Columbia. As part of his answer the
Secretary shall file a certified copy of the transcript of the record
including the evidence upon which the findings and decision complained of
are based. 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 Secretary, with or without remanding the cause for a
rehearing
of his answer the
Secretary shall file a certified copy of the transcript of the record
including the evidence upon which the findings and decision complained of
are based. 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 Secretary, with or without remanding the cause for a
rehearing. The findings of the Secretary as to any fact, if supported by
substantial evidence, shall be conclusive, and where a claim has been
denied by the Secretary or a decision is rendered under subsection (b) of
this section which is adverse to an individual who was a party to the
hearing before the Secretary, because of failure of the claimant or such
individual to submit proof in conformity with any regulation prescribed
under subsection (a) of this section, the court shall review only the
question of conformity with such regulations and the validity of such
regulations. The court may, on motion of the Secretary made for good cause
shown before he files his answer, remand the case to the Secretary for
further action by the Secretary, and it may at any time order additional
evidence to be taken before the Secretary, 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; and the Secretary shall, after the case is remanded, and after
hearing such additional evidence if so ordered, modify or affirm his
findings of fact or his decision, or both, and shall file with the court
any such additional and modified findings of fact and decision, and a
transcript of the additional record and testimony upon which his action in
modifying or affirming was based. Such additional or modified findings of
fact and decision shall be reviewable only to the extent provided for
review of the original findings of fact and decision
decision, or both, and shall file with the court
any such additional and modified findings of fact and decision, and a
transcript of the additional record and testimony upon which his action in
modifying or affirming was based. Such additional or modified findings of
fact and decision shall be reviewable only to the extent provided for
review of the original findings of fact and decision. The judgment of the
court shall be final except that it shall be subject to review in the same
manner as a judgment in other civil actions. Any action instituted in
accordance with this subsection shall survive notwithstanding any change
in the person occupying the office of Secretary or any vacancy in such
office."

[3] For example, a district
court may on occasion order a remand to an agency even though the district
court action was filed by the agency, not someone seeking judicial review,
e.g., United States v. Alcon Laboratories , 636 F.2d 876 (CAI),
cert. denied, 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed. 2d 388 (1981). In
other cases the district court may order a remand to the agency but the
person seeking judicial review may seek to appeal on the ground that
broader relief should have been granted by the district court, e.g., Bohms v. Gardner , 381 F.2d 283 (CA8 1967), cert. denied, 390 U.S.
964, 88 S.Ct. 1069 L.Ed.2d 1164 (1968). None of these situations is
presented in this case, and we express no opinion about appealability in
those circumstances.

[4] Specifically, the District
Court noted that an Administrative Law Judge "found that the 'medical
findings shown in the medical evidence of record establish the existence
of mitral valve prolapse," App. to Pet. for Cert. 17a, which does not meet
or equal one of the listed impairments but might, in the District Court's
view prevent respondent from engaging in any gainful activity, ibid .
] Specifically, the District
Court noted that an Administrative Law Judge "found that the 'medical
findings shown in the medical evidence of record establish the existence
of mitral valve prolapse," App. to Pet. for Cert. 17a, which does not meet
or equal one of the listed impairments but might, in the District Court's
view prevent respondent from engaging in any gainful activity, ibid .

[5] Neither party suggests that
the Secretary's decision denying respondent benefits without considering
her mitral valve prolapse was not a "final decision of the Secretary"
within the meaning of § 405(g).

[6] See, e.g., Caulder v.
Bowen , 791 F.2d 872 (CA11 1986); Borders v. Heckler , 777 F.2d
954, 955 (CA4 1985); Newhouse v. Heckler , 753 F.2d 283, 287 (CA3
1985); Booz v. Secretary of Health and Human Services , 734 F.2d
1378, 1381 (CA9 1984); Dorsey v. Heckler , 702 F.2d 597, 604-605
(CA5 1983); Cagle v. Califano , 638 F.2d 219, 221 (CA10 1981).
Although all the Circuits recognize that new evidence must be "material"
to warrant a sixth-sentence remand, it is not clear whether the Circuits
have interpreted the requirement of materiality in the same way. See Dorsey, supra , at 605, n.9 (criticizing "stricter position" of
Fourth and Tenth Circuits); Godsey v. Bowen , 832 F.2d 443, 444 (CA7
1987) (expressing skepticism about existence of conflict); Borders,
supra , at 956 (also skeptical). We express no opinion on the proper
definition of materiality in this context.

[7] It is true, as respondent
maintains, that the District Court did not caption its order as a
"judgment," much less a "final judgment." The label used by the District
Court of course cannot control the order's appealability in this case, any
more than it could when a District Court labeled a nonappealable
interlocutory order as a "final judgment." See Liberty Mutual Ins. Co.
v. Wetzel , 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976).
trict Court did not caption its order as a
"judgment," much less a "final judgment." The label used by the District
Court of course cannot control the order's appealability in this case, any
more than it could when a District Court labeled a nonappealable
interlocutory order as a "final judgment." See Liberty Mutual Ins. Co.
v. Wetzel , 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976).

[8] Respondent also makes two
arguments based on subsequent legislative history to counter the
conclusion that Congress intended orders entered under the fourth sentence
of § 405(g) to be appealable final judgments. First, she relies on a
committee print prepared by the Social Security Subcommittee of the House
Ways and Means Committee which, in summarizing amendments to the Social
Security Act, stated that under prior law, a district court could remand a
case to the Secretary on its own motion and that the judgment of the
district court would be final after the Secretary filed any
modified findings of fact and decision with the court, and that no change
had been made by the amendments. See Subcommittee on Social Security of
the House Committee on Ways and Means, The Social Security Amendments of
1977: Brief Summary of Major Provisions and Detailed Comparison With Prior
Law, WMCP No. 95-72, p. 26 (Comm. Print 1978) (Brief Summary). The
committee print's observations are entirely consistent with the
construction we have placed on remands ordered under the sixth sentence of
§ 405(g). Moreover, leaving aside all the usual difficulties inherent in
relying on subsequent legislative history, see, e.g., United States v.
Mine Workers , 330 U.S. 258, 281-282, 67 S.Ct. 677, 690, 91 L.Ed. 884
m. Print 1978) (Brief Summary). The
committee print's observations are entirely consistent with the
construction we have placed on remands ordered under the sixth sentence of
§ 405(g). Moreover, leaving aside all the usual difficulties inherent in
relying on subsequent legislative history, see, e.g., United States v.
Mine Workers , 330 U.S. 258, 281-282, 67 S.Ct. 677, 690, 91 L.Ed. 884
(1947), we note that the print specifically warned that it was prepared by
the subcommittee staff for informational purposes only and was not
considered or approved by the subcommittee, and that it was designed not
to be a section-by-section analysis of the amendments but only a
"narrative synopsis." Brief Summary, at I, V. We therefore cannot assign
this committee print any significant weight.

Second, respondent relies on a House Judiciary Report on amendments to
the Equal Access to Justice Act (EAJA), stating that a district court's
remand decision under § 405(g) is not a "final judgment." H.R. Rep. No.
99-120, p. 19 (1985), U.S. Code Cong. & Admin. News 1985, pp. 132,
147. Again, we cannot conclude that this subsequent legislative history
overthrows the language of § 405(g). In the first place, this part of this
particular committee report concerned the proper time period for filing a
petition for attorney's fees under EAJA, not appealability. Second, the
committee relied in particular on Guthrie v. Schweiker , 718 F.2d
104 (CA4 1982), for the proposition that a remand order is not a final
judgment, but Guthrie also concerned the time for filing an
attorney's fee petition, and it is far from clear that Guthrie did
not involve a sixth-sentence remand. Guthrie , in turn, relied on Gilcrist v. Schweiker , 645 F.2d 818, 819 (CA9 1981), which, quite
unlike the present case, involved an appeal from a district court remand
order that did "no more than order clarification of the administrative
decision."

[9] Title 28 U.S.C. §
2412(d)(1)(A) provides in pertinent part:
it is far from clear that Guthrie did
not involve a sixth-sentence remand. Guthrie , in turn, relied on Gilcrist v. Schweiker , 645 F.2d 818, 819 (CA9 1981), which, quite
unlike the present case, involved an appeal from a district court remand
order that did "no more than order clarification of the administrative
decision."

[9] Title 28 U.S.C. §
2412(d)(1)(A) provides in pertinent part:

"Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the united States fees and other
expenses . . . incurred by that party in any civil action . . . including
proceedings for judicial review of agency action, brought by or against
the United States in any court having jurisdiction of that action, unless
the court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust."

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_91_2c. Check the current official text before relying on it. Not legal advice.