*

The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0171p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ROXIE HOLLON, on behalf of JOSEPH W. HOLLON,

Plaintiff-Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

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No. 04-6163

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 03-00037—Jennifer B. Coffman, District Judge.

Argued: July 29, 2005

Decided and Filed: May 22, 2006 

Before: ROGERS and SUTTON, Circuit Judges; ROSEN, District Judge.*

_________________

COUNSEL

ARGUED: Wolodymyr Cybriwsky, LAW OFFICES OF WOLODYMYR CYBRIWSKY,

Prestonsburg, Kentucky, for Appellant. Laurie G. Remter, SOCIAL SECURITY

ADMINISTRATION, Atlanta, Georgia, for Appellee. ON BRIEF: Wolodymyr Cybriwsky, LAW

OFFICES OF WOLODYMYR CYBRIWSKY, Prestonsburg, Kentucky, for Appellant. Laurie G.

Remter, Mary Ann Sloan, Dennis R. Williams, Nadine DeLuca Elder, Richard V. Blake, SOCIAL

SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee.

_________________

OPINION _________________

ROSEN, District Judge. In this appeal, Plaintiff/Appellant Roxie Hollon (“Hollon”)

challenges the district court’s decision affirming the determination of the Defendant/Appellee

Commissioner of Social Security (the “Commissioner”) to terminate the payment of child’s

Supplemental Security Income (“SSI”) benefits to Hollon’s son, Joseph W. Hollon (“Joseph”).

Specifically, Hollon advances three contentions on appeal: (i) that the district court erred in

declining to compel the Commissioner to consider new evidence of Joseph’s medical condition in

the course of a remand to reconstruct a lost administrative record; (ii) that the Commissioner’s

1
No. 04-6163 Hollon v. Commissioner of Social Security Page 2

1

Although this form instructed Hollon to “[c]omplete Waiver Form HA-4608” to confirm her desire not to

appear at a hearing, (id.), Hollon evidently did not execute any such waiver form at the time. Rather, as discussed below,

she completed the waiver form several months later, in response to an inquiry by the ALJ.

decision to terminate benefits was impermissibly based in part upon an invalid, less-than-knowing

waiver of the right to a hearing that Hollon signed before she obtained the assistance of counsel; and

(iii) that the Commissioner’s underlying benefit determination was not supported by substantial

evidence. Finding no error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Joseph W. Hollon was born on December 3, 1989. In April of 1990, Joseph’s mother, Roxie

Hollon, applied on his behalf for child’s Supplemental Security Income benefits, citing asthma as

his impairment. On March 29, 1991, the Social Security Administration determined that Joseph’s

asthma was disabling, and awarded child’s SSI benefits for the period beginning April 1, 1990.

A. The Termination of Joseph’s SSI Benefits and the Ensuing Administrative Proceedings

On April 16, 1999, the Social Security Administration notified Hollon that Joseph’s SSI

benefits would cease in June of 1999, based on the agency’s determination that her son was no

longer disabled. Hollon sought reconsideration of this decision, but the agency notified her on May

1, 2000 that it was adhering to its determination that Joseph was no longer eligible for SSI benefits.

Hollon was further advised of her right to seek review of this decision by an Administrative Law

Judge (“ALJ”).

Hollon promptly requested an ALJ’s review in a Social Security Administration form

submitted on May 3, 2000. This form included two check boxes, inviting Hollon to choose between

“appear[ing] at a hearing” or allowing the ALJ to decide the matter “based on the evidence.”

(Request for Hearing Form HA-501, Admin. Record at 52.) It appears that Hollon initially checked

the box reflecting her desire for a hearing, but that she blackened this out and instead checked the

box indicating that she did not wish to attend a hearing. (See id.)

1

In the course of reviewing the record, ALJ John M. Lawrence noted Hollon’s apparent

election not to appear at a hearing, and sought to ensure that this accurately reflected Hollon’s

wishes. Thus, the ALJ wrote to Hollon on March 6, 2001, stating:

In reviewing you[r] file, I noted that you waived your right to appear and give

evidence, and you requested that a decision be made based on the evidence of record.

After reviewing the evidence in your case, I feel that it may be to your benefit to

appear and testify at a hearing.

If you should decide to appear at a hearing, you will be notified in advance

of the time and place. Please mark below your choice, sign on the signature line of

this letter, and return this letter to me as soon as possible.

(ALJ’s 3/6/2001 Letter, Admin. Record at 277.) Immediately below this text, Hollon was invited

to express her preference regarding a hearing, and she responded by placing a check mark next to

the line stating, “I do not wish to appear and testify at a hearing and request that a decision be made

based on the evidence of record.” (Id.) She then signed and returned the letter to the ALJ,

accompanied by a signed Form HA-4608 in which she confirmed the waiver of her right to appear

before the ALJ. (See Form HA-4608, Admin. Record at 278.)
No. 04-6163 Hollon v. Commissioner of Social Security Page 3

2

Although no hearing was held and no testimony was taken, the ALJ nonetheless found that Hollon’s unsworn

statements in the record “regarding the continuing severity of [Joseph’s] symptoms and the extent of his limitations

[we]re not fully credible.” (ALJ’s 4/13/2001 Decision at 7, Admin. Record at 19.) As discussed below, Hollon contends

that this assessment of her credibility was inappropriate, in view of the purported absence of a meaningful waiver of her

right to appear at a hearing.

3

Upon commencing her federal suit, Hollon retained new counsel who continues to represent her on appeal.

4

These materials have not been made a part of the record on appeal, and we thus are forced to rely upon

Hollon’s characterization of them. As noted earlier, however, the attorney who represented Hollon in her administrative

appeal provided records of Joseph’s treatments at the Kentucky River Medical Center over the period from March 3,

1999 to April 22, 2001, (see 7/12/2001 Letter from Counsel, Admin. Record at 300), and the Appeals Council made these

materials a part of the administrative record, (see Appeals Council’s 11/20/2002 Order, Admin. Record at 7; see also

 In a decision dated April 13, 2001, the ALJ found that Joseph’s SSI benefits had been

properly terminated in June of 1999, two months after he ceased to be disabled within the meaning

of the Social Security Act. The ALJ determined that Joseph suffered from the medically

determinable impairment of asthma, but concluded that the severity of this condition had diminished

since Joseph was found to be disabled in March of 1991. The ALJ further determined that Joseph’s

impairment, while severe, did not meet or medically or functionally equal the requirements of any

listing in the Listing of Impairments set forth at 20 C.F.R. pt. 404, subpt. P, app. 1. Finally, the ALJ

found that Joseph’s impairment did not result in marked or severe functional limitations.2

On April 23, 2001, Hollon requested that the Appeals Council review the ALJ’s decision.

Hollon was represented by counsel in this phase of the administrative proceedings, and her attorney

submitted additional medical records from the Kentucky River Medical Center and a family

physician. In a decision dated November 20, 2002, the Appeals Council denied Hollon’s request

for review. The Appeals Council explained that the medical records provided by Hollon’s attorney

had been considered and “made a part of the record,” but that neither the contentions of counsel nor

the additional evidence “provide[d] a basis for changing the Administrative Law Judge’s decision.”

(Appeals Council’s 11/20/2002 Decision, Admin. Record at 5-7.)

B. The District Court Proceedings and the Reconstruction of the Administrative Record

Hollon commenced this action in the U.S. District Court for the Eastern District of Kentucky

on January 29, 2003, challenging the decision of the Commissioner of Social Security to terminate

her son’s SSI benefits. Shortly thereafter, and before any answer was filed, the Commissioner

moved for a so-called “sentence six” remand under 42 U.S.C. § 405(g), citing the agency’s inability

to locate the record of the administrative proceedings regarding the cessation of Joseph’s benefits.

Through this motion, the Commissioner requested an opportunity to search for the file, and to

reconstruct the record if it could not be located within a reasonable period of time. Hollon

responded that she had no objection to such a remand but, to the contrary, was already assisting the

Commissioner in reconstructing the lost file. Accordingly, the district court entered an April 15,

2003 order granting the Commissioner’s motion and remanding the case for further administrative

proceedings.

Over the next several months, Hollon and her present counsel3

 evidently sent two sets of

records to the Appeals Council as part of the effort to reconstruct the administrative record. Initially,

in March of 2003, Hollon and her counsel forwarded 350 pages of materials obtained from the

attorney who had assisted Hollon in her administrative appeal. Then, on September 2, 2003, Hollon

and her counsel submitted an additional 612 pages of documents to the Appeals Council, purportedly

evidencing “eighty-eight (88) Emergency Room treatments or Hospitalizations” Joseph underwent

at the Kentucky River Medical Center “during the relevant time period.” (Plaintiff/Appellant’s Br.

at 7.)4
No. 04-6163 Hollon v. Commissioner of Social Security Page 4

Admin. Record at 279-85, 290-94 (underlying medical records)). In addition, the administrative record includes other

records of Joseph’s treatments at the Kentucky River Medical Center, spanning from May of 1990 to March of 1999.

(See Admin. Record at 126-33, 162-249.) Accordingly, the record already includes considerable evidence of Joseph’s

treatments at this facility throughout the entire relevant time period. It is not clear whether, and to what extent, the 612

pages of documents produced by Hollon and her present counsel in September of 2003 are duplicative of these existing

portions of the administrative record.

5

Although the record is not entirely clear on this point, it appears that the Commissioner was unable to locate

the lost administrative record, and that the record instead had to be reconstructed. 

6

While Hollon repeatedly asserts in her briefs on appeal that the 301-page administrative record omits some

of the 350 pages produced by her counsel in March of 2003, she fails to identify the specific portions of this 350-page

submission that were left out of the administrative record. Even if we were inclined to investigate this matter anew, we

could not do so, because Hollon has not incorporated her 350-page submission into the record on appeal. We further

note that Hollon has not suggested any basis upon which we could conclude that the omitted portions of this 350-page

submission originally were a part of the lost administrative record.

On October 28, 2003, the Commissioner submitted a 301-page administrative record to the

district court,5 and the case was restored to the court’s active docket. In Hollon’s view, however,

this administrative record was incomplete in two respects. First, it purportedly failed to include all

of the 350 pages of documents that Hollon and her counsel initially forwarded to the Appeals

Council upon learning that the administrative record had been lost.6 Next, the record provided by

the Commissioner did not include the most recent 612 pages of medical records that Hollon and her

counsel mailed to the Appeals Council on September 2, 2003.

In light of these perceived deficiencies, Hollon requested that the district court again remand

the case to the Commissioner, so that the balance of her 350-page submission and the entirety of her

612-page submission could be incorporated into the administrative record. The district court denied

this motion, finding that Hollon had failed to demonstrate the good cause and materiality that are

the prerequisites to such a remand. The district court then proceeded to the merits of the case,

determining in a June 14, 2004 order that the Commissioner’s decision to terminate Joseph’s SSI

benefits was supported by substantial evidence in the administrative record. Hollon now appeals,

advancing both procedural and substantive challenges to the district court’s rulings.

II. ANALYSIS

A. The District Court Did Not Err in Declining to Order a Remand for Consideration of

Additional Evidence of Joseph’s Medical Condition.

As is clear from the foregoing, the parties devoted a significant portion of their efforts in the

court below to the threshold matter of ascertaining the proper content of the administrative record,

as opposed to the substantive inquiry whether this record provided substantial support for the

Commissioner’s decision to terminate Joseph’s SSI benefits. Likewise, Hollon’s arguments on

appeal rest principally upon the premise that the administrative record is incomplete, defeating any

possibility of meaningful judicial review and fatally undermining the administrative decision that

rests upon this record. In light of this purported defect, Hollon contends that the district court erred

in declining to remand this case with instructions that the Commissioner incorporate into the record

all of the materials that Hollon submitted to the Appeals Council during the process of

reconstructing the lost record. We find, however, that the district court properly applied the correct

standards in ruling that Hollon was not entitled to a remand for further development of the

administrative record.

A district court’s authority to remand a case for further administrative proceedings is found

in 42 U.S.C. § 405(g), which provides in pertinent part:
No. 04-6163 Hollon v. Commissioner of Social Security Page 5

7

As we recently noted, sentence six of § 405(g) actually authorizes two different sorts of prejudgment remands.

See Marshall v. Commissioner of Social Security, No. 05-5492, __ F.3d __, 2006 WL 997213, at *3 n.2 (6th Cir. Apr.

18, 2006). We return to this distinction below.

Any individual, after any final decision of the Commissioner of Social

Security made after a hearing to which he was a party, . . . may obtain a review of

such decision by a civil action . . . . 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 a rehearing . . . . The court may, on motion of the Commissioner of Social

Security made for good cause shown before the Commissioner files the

Commissioner’s answer, remand the case to the Commissioner of Social Security for

further action by the Commissioner of Social Security, and it may at any time order

additional evidence to be taken before the Commissioner of Social Security, 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 Commissioner of Social Security shall, after the case is

remanded, and after hearing such additional evidence if so ordered, modify or affirm

the Commissioner’s findings of fact or the Commissioner’s 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 the

Commissioner’s action in modifying or affirming was based.

42 U.S.C. § 405(g).

As we have elsewhere observed, two separate sentences within this provision authorize

remands to the Commissioner. See Faucher v. Secretary of HHS, 17 F.3d 171, 174 (6th Cir. 1994).

First, a district court may order a “sentence four” remand after reviewing the Commissioner’s

decision and entering a judgment, if it determines that a rehearing before the Commissioner is

warranted in light of the court’s ruling. See id. Alternatively, the district court may order a

prejudgment “sentence six” remand, which provides a potential avenue for the relief sought by

Hollon in this case: namely, the reopening of the administrative record so that the Commissioner

may consider “new and material evidence that for good cause was not previously presented to” the

Commissioner. Id.7

Yet, the statute is quite explicit as to the standards that must be met before a district court

may order a sentence six remand for the taking of additional evidence. In particular, it must be

shown (i) that the evidence at issue is both “new” and “material,” and (ii) that there is “good cause

for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C.

§ 405(g); see also Cline v. Commissioner of Social Security, 96 F.3d 146, 148 (6th Cir. 1996). The

party seeking a remand bears the burden of showing that these two requirements are met. See Foster

v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).

In this case, Hollon has not established — and, indeed, has scarcely even addressed — these

two prerequisites to a sentence six remand for the consideration of new evidence. First, she has not

shown that her proposed additions to the record are either “new” or “material.” As to the former,

we have explained that “evidence is new only if it was not in existence or available to the claimant

at the time of the administrative proceeding.” Id. (internal quotation marks and citation omitted).

Such evidence, in turn, is deemed “material” if “there is a reasonable probability that the

[Commissioner] would have reached a different disposition of the disability claim if presented with

the new evidence.” Foster, 279 F.3d at 357 (internal quotation marks and citation omitted).
No. 04-6163 Hollon v. Commissioner of Social Security Page 6

8

We reiterate that there is no indication that the 301-page record produced to the district court is a less-thancomplete reconstruction of the lost administrative record, or that Hollon’s 350-page submission more accurately reflects

this lost record. Because Hollon has not specifically identified any evidence in the original record that failed to find its

way into the reconstructed record, our ruling here does not create a paradox in which claimants are precluded from

adding original record evidence to a reconstructed record simply because the evidence is not “new.”

If Hollon had established otherwise, and had persuaded the district court (or this court) that specific, identifiable

original evidence was indeed omitted from the reconstructed record, we are confident that a statutory remedy would have

been available to rectify this omission. Section 405(g) requires that “[a]s part of the Commissioner’s answer the

Commissioner of Social Security shall file a certified copy of the transcript of the record including the evidence upon

which the findings and decision complained of are based.” Presumably, then, if a court concludes that a reconstructed

record is not the full and complete record upon which the agency based its decision, it may reverse this decision in light

of the Commissioner’s failure to provide the materials necessary for the court to satisfy its statutory obligation —

namely, to inquire whether the Commissioner’s decision is “supported by substantial evidence.” 42 U.S.C. § 405(g);

see also 5 U.S.C. § 706 (dictating that “the court shall review the whole record” in reviewing a challenged agency

decision). Upon reversing a decision that the agency rendered unreviewable, the court could then order a remand under

the authority of sentence four, so that the agency could include the omitted evidence in the reconstructed record. Cf.

Russell v. Commissioner of Social Security, No. 00-6675, 2002 WL 509309, at *2 (6th Cir. Apr. 1, 2002) (per curium)

(remanding under sentence four when the reconstructed record failed to include specific, original evidence, and thus left

the courts to review only part of the record relied upon by the ALJ).

Neither of the two sets of documents that Hollon seeks to add to the record satisfies these

criteria for “new” and “material” evidence. Initially, Hollon protests that the 301-page record that

the Commissioner forwarded to the district court does not incorporate the entirety of her 350-page

submission to the Appeals Council upon learning that her son’s claim file had been lost. Yet, these

350 pages of documents clearly were in existence and available to Hollon during the administrative

proceedings, as Hollon herself asserts that all of these materials were “previously submitted to the

Commissioner” by the attorney who represented her in her administrative appeal.

(Plaintiff/Appellant’s Br. at 6.) It follows that there is no “new” evidence amongst this 350-page

submission. Moreover, as we noted earlier, Hollon has not advised us which portions of this 350-

page collection of documents have been omitted from the 301-page administrative record, much less

endeavored to explain how their inclusion might have led to a different outcome in the

administrative proceedings. We are unwilling to assume, absent any basis for doing so, that

Hollon’s 350-page submission invariably must be more supportive of Joseph’s entitlement to

benefits than the 301-page record before us.8

The other collection of documents that Hollon seeks to introduce into the administrative

record is the 612 pages of medical records of Joseph’s treatments at the Kentucky River Medical

Center that Hollon and her current counsel sent to the Appeals Council while this case was on

remand from the district court. Once again, however, Hollon has not even attempted to show that

these materials were unavailable to her or her prior counsel during the course of the administrative

proceedings. Neither has she explained how these materials add anything to the existing (and

considerable) record of Joseph’s visits to and treatments at this same facility over an eleven-year

period. For all that can be discerned from the record before us, Hollon’s 612-page submission might

be entirely cumulative of materials that already are a part of the administrative record. If this were

not the case, it presumably would not be difficult for Hollon to identify some material distinction

between the existing record and her voluminous submission. Tellingly, she has not done so.

Hollon’s showing is similarly deficient on the “good cause” prong of a request for a sentence

six remand. “A claimant shows ‘good cause’ by demonstrating a reasonable justification for the

failure to acquire and present the evidence for inclusion in the hearing before the ALJ.” Foster, 279

F.3d at 357. Again, there is no indication that any of the evidence cited by Hollon as grounds for

a remand was unavailable to her during the course of the administrative proceedings. Nor has she

identified any obstacles to her submission of this evidence during those proceedings. Even assuming

that Hollon’s pro se status is relevant to the “good cause” inquiry, see, e.g., Jones v. Sullivan, 949
No. 04-6163 Hollon v. Commissioner of Social Security Page 7

F.2d 57, 61 (2d Cir. 1991), she was represented by counsel by the time the matter reached the

Appeals Council — and, indeed, her attorney was successful in supplementing the administrative

record at that point. Accordingly, we agree with the district court’s conclusion that Hollon has not

met the standards for a sentence six remand for the consideration of new evidence.

Nonetheless, Hollon argues that she should be relieved of the obligation to satisfy these

statutory requirements of materiality and good cause, where the district court already had ordered

a remand under sentence six of § 405(g) to allow the Commissioner to either locate or reconstruct

the lost administrative record. As Hollon observes, nothing in the district court’s order of remand

precluded the Commissioner from receiving her additional evidence — and, indeed, the pertinent

agency regulations seemingly confirm the Commissioner’s authority to proceed in this fashion upon

remand from the district court, see 20 C.F.R. § 404.983. Because the case was remanded at the

Commissioner’s request, and because it was the Commissioner’s negligence that necessitated this

remand, Hollon contends that it would only be fair to allow her to supplement the administrative

record while the Commissioner was in the process of rebuilding it.

Hollon’s argument on this point, however, is at odds with both the express language of

§ 405(g) and the practical realities of a sentence six remand for the consideration of new evidence.

As discussed earlier, the statute specifically enumerates the requirements for a remand of the sort

sought by Hollon: a court may order such a remand “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.” 42 U.S.C. § 405(g) (emphasis added). The fact that another

party — the Commissioner — has met the prerequisites for a different sort of remand — under the

first portion of sentence six — does not overcome the statutory command of both “good cause” and

“new and material evidence” as required grounds for a sentence six remand for the consideration

of additional evidence.

As the Supreme Court has made clear, we are not free to dispense with these statutory

requirements. In Melkonyan v. Sullivan, 501 U.S. 89, 111 S. Ct. 2157 (1991), the Court considered

a case in which the district court had ordered a remand for further administrative proceedings

without specifying the basis for this remand. The parties and the Court alike agreed that this order

was not predicated on sentence four of § 405(g), “as the District Court did not affirm, modify, or

reverse the Secretary’s decision.” Melkonyan, 501 U.S. at 98, 111 S. Ct. at 2163. Yet, the Court

also found itself unable to “state with certainty that the remand in this case was . . . a sentence six

remand,” where the district court had not made the requisite finding of “good cause” for such a

remand. 501 U.S. at 102, 111 S. Ct. at 2165.

Faced with this interpretative dilemma, the Court addressed the argument that a district court

“has inherent authority to enter other types of remand orders,” beyond those permitted under

sentences four and six of § 405(g). 501 U.S. at 99, 111 S. Ct. at 2164. The Court found that this

proposition could not be squared with the language of the statute itself:

. . . [I]n [a prior case] we analyzed § 405(g) sentence by sentence and identified two

kinds of possible remands under the statute. While we did not state explicitly at that

time that these were the only kinds of remands permitted under the statute, we do so

today. Under sentence four, a district court may remand in conjunction with a

judgment affirming, modifying, or reversing the Secretary’s decision. Under

sentence six, the district court may remand in light of additional evidence without

making any substantive ruling as to the correctness of the Secretary’s decision, but

only if the claimant shows good cause for failing to present the evidence earlier.

Congress’ explicit delineation in § 405(g) regarding the circumstances under which

remands are authorized leads us to conclude that it intended to limit the district

court’s authority to enter remand orders to these two types.
No. 04-6163 Hollon v. Commissioner of Social Security Page 8

9

In a footnote omitted from the above-quoted passage, the Court recognized that “[s]entence six also authorizes

the district court to remand on motion by the Secretary made before the Secretary has filed a response in the action,” but

observed that “[this] subcategory of sentence six remands is not implicated in this case.” 501 U.S. at 100 n.2, 111 S.

Ct. at 2164 n.2. Here, of course, the district court ordered precisely this sort of remand, as opposed to the other

subcategory of sentence six remand sought by Hollon.

10Hollon did not oppose the Commissioner’s motion. Nor does she dispute that the Commissioner established

“good cause” by pointing to the loss of Joseph’s claim file — a recordkeeping mishap which, if not remedied, would

have defeated any prospect of meaningful judicial review.

501 U.S. at 99-100, 111 S. Ct. at 2164 (footnote and citation omitted).9 As further support for this

reading, the Court cited passages from the legislative history of § 405(g) evidencing a belief that

“courts were often remanding Social Security cases without good reason.” 501 U.S. at 101, 111 S.

Ct. at 2165. Accordingly, the Court held that “in § 405(g) actions, remand orders must either

accompany a final judgment affirming, modifying, or reversing the administrative decision in

accordance with sentence four, or conform with the requirements outlined by Congress in sentence

six.” 501 U.S. at 101-02, 111 S. Ct. at 2165. Because the district court’s order in that case did not

fit within either of these categories, the Supreme Court remanded for clarification of the grounds for

the remand.

We confront no similar interpretative dilemma here. Rather, all are agreed that the district

court ordered a remand under the first portion of sentence six, finding that the Commissioner had

shown “good cause” for a remand through a motion brought before an answer had been filed. See

42 U.S.C. § 405(g).10 Just as clearly, the district court’s order did not reflect the findings necessary

to support a remand under the latter portion of sentence six. To the contrary, the district court

subsequently held, and we have now affirmed, that Hollon failed to satisfy the two statutory

prerequisites to a remand for consideration of additional evidence. If the district court had

nonetheless ordered such a remand, it would have exceeded its limited authority under § 405(g) as

construed in Melkonyan.

It readily follows, in our view, that the Commissioner was under no obligation to consider

any additional evidence upon remand from the district court. As reflected in the Commissioner’s

motion, this remand was for the limited purpose of finding or reconstructing the lost administrative

record. Regardless of whether the Commissioner’s regulations might permit the taking of additional

evidence in the course of this effort, see 20 C.F.R. § 404.983, Hollon has not identified any legal

basis for compelling the Commissioner to do so. To the contrary, § 405(g) explicitly states the

criteria that must be satisfied before a court may order the Commissioner to consider additional

evidence. Hollon simply has not met these requirements, and neither this court nor the district court

is at liberty to dispense with them. Accordingly, the district court properly concluded that there was

no basis upon which to order a sentence six remand for the taking of additional evidence.

Even if we believed ourselves free to disregard the statutory criteria for a sentence six

remand under some sufficiently compelling set of circumstances, Hollon’s generalized appeal to

notions of fairness would not motivate us to do so in this case. Hollon contends, in essence, that it

would be inequitable to grant a remand based on the Commissioner’s negligence, yet deny an

innocent claimant the opportunity to use this same remand to supplement the record. Given that the

Commissioner had already embarked upon the process of rebuilding the record, Hollon maintains

that nothing would be lost, and perhaps something would be gained, if she were permitted to provide

additional materials that would shed further light on her son Joseph’s medical condition and

treatments over the years.

We cannot agree with Hollon’s premise that her proposed supplementation of the record

would be entirely cost-free. It does no good, after all, to merely add more materials to the
No. 04-6163 Hollon v. Commissioner of Social Security Page 9

11Congress could, for example, relieve a claimant of the burden of establishing the “good cause” prong of the

sentence six standard in cases where the Commissioner seeks a remand to reconstruct a lost administrative record.

administrative record, unless there will be further administrative proceedings in which the

Commissioner decides whether to revisit a denial of benefits in light of this new evidence. Absent

such additional administrative review, a court could not properly perform its task under § 405(g) of

determining whether the Commissioner’s decision is supported by substantial evidence, because the

court would be evaluating a record beyond that which was before the Commissioner at the time of

the challenged decision. This procedure would violate our oft-stated rule that judicial review is

“confined to [the] evidence that was available to the [Commissioner].” Wyatt v. Secretary of HHS, 974 F.2d 680, 685 (6th Cir. 1992).

Consequently, there is no reason for a court to permit a Social Security claimant to

supplement the administrative record on remand unless the court also is prepared to order the

Commissioner to act upon this new evidence. Yet, a court cannot issue such an order — and,

moreover, it would serve no useful purpose — unless there is some basis for believing that the

Commissioner might reach a different decision in light of this new evidence. This is precisely the

function of the “materiality” prong of the statutory standard for a sentence six remand — as

explained, it directs the court to inquire whether “there is a reasonable probability that the

[Commissioner] would have reached a different disposition of the disability claim if presented with

the new evidence.” Foster, 279 F.3d at 357 (internal quotation marks and citation omitted). Where,

as here, a claimant’s proffered evidence does not meet this standard, nothing would be gained by

adding it to the administrative record, whether through a sentence six remand or some other

procedural device.

We readily acknowledge Hollon’s concern that the Commissioner’s loss of the administrative

record injects a troublesome element of uncertainty into the proceedings, and unduly shifts the focus

from ordinary “substantial evidence” review to litigation over the proper content of the reconstructed

record. Indeed, at oral argument, we expressed our dismay, frustration and concern that

administrative records are lost in far too many cases, reflecting the Social Security Administration’s

apparent inattention to its important recordkeeping responsibilities. In addition, we sought

assurances that the Commissioner is working actively and aggressively to prevent such mishaps in

the future, and to ensure that claim files are maintained in accordance with the agency’s statutory

obligations. If the Commissioner is unable to improve the agency’s performance in this regard,

Congress perhaps might wish to mitigate the potential prejudice to claimants by relaxing the

statutory standards for remands in some cases,11 or by adopting other remedial measures. In the

present case, however, we are unwilling to order as a remedy that the administrative record be

reopened to any and all submissions, absent any ground for believing that this additional evidence

would result in a materially different record. Because no such showing has been made in this case,

we affirm the district court’s denial of Hollon’s request for a sentence six remand for consideration

of new evidence.

B. The District Court Did Not Err in Holding that Hollon Validly Waived Her Right to

Appear at a Hearing Before the ALJ.

As her next issue on appeal, Hollon argues that the district court erred in determining that

she validly waived her right to appear at a hearing before the ALJ. We find, however, that Hollon’s

waiver of this right comported with the pertinent standards promulgated by the Commissioner and

reflected in our precedents.

As we have explained, both the Social Security Act and basic principles of due process

“require that a claimant receive meaningful notice and an opportunity to be heard before his claim
No. 04-6163 Hollon v. Commissioner of Social Security Page 10

for disability benefits can be denied.” Stoner v. Secretary of HHS, 837 F.2d 759, 760-61 (6th Cir.

1988) (citing 42 U.S.C. § 405(b)). Similarly, the Commissioner’s regulations confirm that “[a]ny

party to a hearing has a right to appear before the administrative law judge . . . to present evidence

and to state his or her position.” 20 C.F.R. § 416.1450(a). This same regulation further provides,

however, that a party may waive his or her right to appear by “send[ing] the administrative law

judge a waiver or a written statement indicating that [he or she] do[es] not wish to appear at the

hearing.” 20 C.F.R. § 416.1450(b); see also Stoner, 837 F.2d at 761 (noting that “the right to appear

can be waived”).

Beyond these general provisions, the Commissioner has issued a ruling that sets standards

for testing the validity of a waiver:

In order to insure that any waiver is made voluntarily and knowingly, the

[Commissioner] has promulgated Social Security Ruling (SSR) 79-19 to “establish

requirements necessary for a valid waiver of an individual’s right to appear, in

person or through a representative, and present evidence or information at a hearing

before the Office of Hearings and Appeals.” Prior to the publication of SSR 79-19,

the only requirement for a valid waiver was that it be in writing. For administrative

convenience, SSA Form HA 501, “Request for Hearing,” included a check-box

where the claimant could indicate his decision. Although the form still is in use, in

order to waive the right to appear, SSR 79-19 suggests that the claimant “sign a

statement to that effect in accordance with the evidence requirements described

below.” In the statement, a claimant acknowledges that he has been informed of the

nature of the proceedings and of his right to counsel, to appear and testify at the

hearing, to present evidence, to waive the right to appear, and to have the waiver

withdrawn prior to the mailing of the decision.

Stoner, 837 F.2d at 761.

In this case, Hollon initially submitted a “Request for Hearing” Form HA-501 in May of

2000, and she checked the box on this form indicating that she did not wish to appear at a hearing.

(Request for Hearing Form HA-501, Admin. Record at 52.) Immediately adjacent to this check-box,

however, Hollon was advised to “[c]omplete Waiver Form HA-4608,” (id.), and it is undisputed that

Hollon did not execute this additional waiver form at the time. Without more, Hollon’s “mere

marking of the check-box on the request for hearing form” might have been ambiguous, and might

not have qualified as a valid waiver of her right to appear before the ALJ. See Stoner, 837 F.2d at

761.

But this was not the end of the matter. Rather, as recounted above, the ALJ wrote to Hollon

on March 6, 2001, noting her apparent waiver of her right to appear at a hearing, and cautioning that

“[a]fter reviewing the evidence in your case, I feel that it may be to your benefit to appear and testify

at a hearing.” (ALJ’s 3/6/2001 Letter, Admin. Record at 277.) Accordingly, the ALJ requested that

Hollon again indicate whether she wished to appear at a hearing. (See id.) In response, Hollon

signed and returned this letter to the ALJ a few days later, after first placing a check mark next to

the line stating, “I do not wish to appear and testify at a hearing and request that a decision be made

based on the evidence of record.” (Id.)

Just as importantly, Hollon also signed and returned a separate waiver on Form HA-4608.

(See Form HA-4608, Admin. Record at 278.) Through this form, signed the same day as her

response to the ALJ, Hollon acknowledged: (i) that she had been advised of her right to appear

before the ALJ; (ii) that, although this right had been explained to her, she did not wish to appear;

(iii) that she was free to change her mind and request an appearance before the ALJ at any time

before the ALJ mailed his decision; and (iv) that she had a right to be represented in the
No. 04-6163 Hollon v. Commissioner of Social Security Page 11

administrative proceedings. (See id.) So far as revealed in the record, Hollon did not attempt to

revoke this waiver, request an opportunity to appear, or otherwise indicate that she had changed her

mind at any time before the ALJ issued his decision, and she does not maintain otherwise on appeal.

Under these circumstances, we find no basis for questioning the validity of Hollon’s waiver.

The Form HA-4608 that she signed in March of 2001 precisely tracks each of the requirements for

a valid waiver as established in Social Security Ruling 79-19. See Stoner, 837 F.2d at 761.

Although Hollon did not execute this form in May of 2000 when she first expressed her desire not

to appear at a hearing, the form was timely completed and returned well before the ALJ proceeded

on April 13, 2001 to decide Joseph’s claim without a hearing. Indeed, the ALJ seemingly went

beyond the requirements of SSR 79-19 by writing directly to Hollon and expressly advising her that

“it may be to your benefit to appear and testify at a hearing.” (ALJ’s 3/6/2001 Letter, Admin.

Record at 277.) Despite this urging, Hollon confirmed her election not to appear, signing two

additional statements to this effect. Under this record, we are at a loss to discern any additional

measures that the ALJ might have employed to confirm Hollon’s knowing waiver of her right to

appear at a hearing.

Nor can we accept Hollon’s suggestion that her failure to appear at a hearing should

somehow have precluded the ALJ from discounting the “credibility” of her unsworn statements in

the administrative record. Whether characterized in terms of credibility, weight, or persuasiveness,

each item of evidence in the record must be evaluated by the ALJ in his fact-finding role to

determine its bearing upon a claimant’s entitlement to benefits. In finding that certain of Hollon’s

statements were “not fully credible,” (ALJ’s 4/13/2001 Decision at 7, Admin. Record at 19), the ALJ

was engaged in nothing more than the usual fact-finder’s function of determining the extent to which

a claimant’s own reports of his or her symptoms and limitations are consistent with or contradicted

by the remainder of the record.

When she signed Form HA-4608 confirming her waiver of the right to appear before the

ALJ, Hollon expressly acknowledged that her “personal appearance before an Administrative Law

Judge would provide [her] with the opportunity to present . . . [her] testimony,” and that “this

opportunity to be seen and heard could be helpful to the Administrative Law Judge in making a

decision.” (Form HA-4608, Admin. Record at 278.) Similarly, the ALJ specifically advised Hollon

in his March 6, 2001 letter that her appearance at a hearing “may be to your benefit.” (ALJ’s

3/6/2001 Letter, Admin. Record at 277.) Having nonetheless decided to waive her right to appear,

Hollon cannot now complain that a foreseeable consequence of this election came to pass — namely,

that the ALJ might give less than full weight to her statements regarding her son’s symptoms and

limitations. Accordingly, we affirm the ruling in the court below that Hollon validly waived her

right to appear before the ALJ.

C. The District Court Properly Found that the Commissioner’s Decision Is Supported by

Substantial Evidence in the Record.

Hollon’s final contention on appeal is that the Commissioner’s decision to discontinue

Joseph’s benefits is not supported by substantial evidence in the administrative record. This

challenge warrants little discussion, as Hollon has made little effort to develop this argument in her

brief on appeal, or to identify any specific aspects of the Commissioner’s determination that lack

support in the record. Under these circumstances, we decline to formulate arguments on Hollon’s

behalf, or to undertake an open-ended review of the entirety of the administrative record to

determine (i) whether it might contain evidence that arguably is inconsistent with the

Commissioner’s decision, and (ii) if so, whether the Commissioner sufficiently accounted for this

evidence. Rather, we limit our consideration to the particular points that Hollon appears to raise in

her brief on appeal.
No. 04-6163 Hollon v. Commissioner of Social Security Page 12

12Notably, the district court cited precisely the same deficiency in Hollon’s argument in the proceedings below.

(See District Court 6/14/2004 Order at 8.)

Hollon’s substantive challenge to the Commissioner’s decision, while vague and difficult

to discern, seemingly rests upon two propositions. First, she harkens back to her principal

contention on appeal, arguing that the Commissioner’s decision is fatally undermined by the lack

of a complete record of Joseph’s medical condition and treatments over the years. Yet, we already

have concluded that there was no basis for a remand for consideration of new evidence, where

Hollon has not shown that any such additional evidence might have materially affected the outcome

of the administrative proceedings. It follows that any purported gaps in the administrative record

do not threaten to deprive the Commissioner’s decision of substantial evidentiary support.

Next, Hollon suggests that the ALJ failed to give proper deference to the opinions of

Joseph’s treating physicians. As the Commissioner points out in response, however, Hollon has

failed to cite any specific opinion that the ALJ purportedly disregarded or discounted, much less

suggest how such an opinion might be impermissibly inconsistent with the ALJ’s findings.12 In the

absence of any such focused challenge, we decline to broadly scrutinize any and all treating

physician opinions in the record to ensure that they are properly accounted for in the ALJ’s decision.

More generally, to the extent that the records of Joseph’s treating physicians confirm that

he continues to suffer from asthma, the ALJ recognized the existence of this severe impairment, (see

ALJ’s 4/13/2001 Decision at 6, 7, Admin. Record at 18, 19), but found that this condition was no

longer disabling within the meaning of the Social Security Act. Hollon has not endeavored to

explain how proper deference to the opinions of Joseph’s treating physicians would require a

different conclusion. Accordingly, we concur in the district court’s ruling that the Commissioner’s

decision is supported by substantial evidence.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the challenged district court rulings in all

respects.