                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0323n.06

                                            No. 12-1653
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                             Apr 02, 2013
                                FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


JERRY T. GAY,                                             )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellant,                               )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE EASTERN
v.                                                        )        DISTRICT OF MICHIGAN
                                                          )
COMMISSIONER OF SOCIAL SECURITY,                          )                           OPINION
                                                          )
       Defendant-Appellee.                                )
                                                          )



BEFORE: DAUGHTREY, ROGERS, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Jerry Gay’s first application for Social Security benefits was

denied by an Administrative Law Judge (ALJ) in 2007. Gay reapplied in 2008 and introduced new

evidence supporting his claim. His second application was denied by a second ALJ. The issue we

are asked to decide is whether, while evaluating Gay’s second application, the second ALJ reopened

the first decision. The district court found that he did not. Due to the conflicting statements in the

second ALJ’s decision, we are not able to resolve this dispute on the record before us and so vacate

the district court’s judgment and remand the case for clarification.

                                       I. BACKGROUND

       Jerry Gay injured his back in the mid-1980s. He did not seek medical treatment at that time.

In 2004, he began experiencing severe lower back pain. Beginning in 2005, he was examined by
No. 12-1653
Gay v. Commissioner of Social Security

several different physicians, and in 2007 he began receiving treatment for the back pain as well as

for some respiratory problems.

       Gay first applied for Disability Insurance Benefits and Supplemental Security Income on

April 12, 2005, alleging an onset date of October 1, 2004. His application was initially denied, and

Gay requested a hearing. A hearing was held before ALJ Michael Wilenkin, who considered Gay’s

testimony and reviewed medical records from three physicians. ALJ Wilenkin found Gay “not

entirely credible” and concluded that Gay was capable of light work and could perform his past

relevant work as a janitor or line stocker. Therefore, ALJ Wilenkin found that Gay was not disabled

and denied his claim for benefits on October 12, 2007.

       Gay filed his second application on January 14, 2008, alleging an onset date of October 13,

2007 (the day after ALJ Wilenkin’s decision). His second application was initially denied, and Gay

again requested a hearing, which was held before ALJ Timothy Scallen on January 8, 2010. Gay was

represented by a non-attorney representative. At the hearing, Gay amended his onset date to October

2, 2005—his 50th birthday.

       On the same day as the hearing, Gay’s personal representative sent ALJ Scallen a letter

requesting that he reopen ALJ Wilenkin’s 2007 decision. 20 C.F.R. § 404.988(b) allows an ALJ to

reopen a prior decision adjudicating a claim for Disability Insurance Benefits within four years of

the initial determination if the ALJ finds “good cause” to do so.1 “Good cause” is satisfied if “[n]ew




       1
       A decision adjudicating a claim for Supplemental Security Income can only be reopened for
good cause within two years of the initial determination. 20 C.F.R. § 416.1488(b).

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Gay v. Commissioner of Social Security

and material evidence is furnished” or if “[t]he evidence that was considered in making the

determination or decision clearly shows on its face that an error was made.” 20 C.F.R. § 404.989(a).

       Gay’s personal representative contended that Gay could satisfy both methods of showing

good cause. In connection with his second application, Gay had submitted more medical records

from additional doctors. Gay’s representative pointed in particular to records from Gay’s treating

physician that contained evidence of Gay’s respiratory ailments and were not submitted with Gay’s

first application. Additionally, Gay’s representative argued that ALJ Wilenkin’s conclusion that Gay

could perform his past work as a janitor or a cook was clearly erroneous in light of the medical

opinions from two of the doctors whose reports ALJ Wilenkin discussed in his decision.

       ALJ Scallen never explicitly ruled on Gay’s request to reopen. Instead, in his opinion he

acknowledged ALJ Wilenkin’s decision and cited two Sixth Circuit cases and related acquiescence

rulings from the Social Security Administration. These cases stand for the principle that when

confronted with a second application for benefits, an ALJ is bound by favorable subsidiary findings

from the previous determination, unless there is new and material evidence to the contrary. See

Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997); Dennard v. Sec. of Health &

Human Servs., 907 F.2d 598 (6th Cir. 1990); SSAR 98-3(6); SSAR 98-4(6). ALJ Scallen explained

his approach as follows:

       The reason for not adopting the findings of the prior decision in this case is that the
       current record contains new and material evidence relating to these findings and
       establishes that the claimant’s condition has persisted since that time with allegations
       of postural limitations. Further, the claimant has submitted new and material
       evidence relating to the previously determined nonsevere impairments. Specifically,
       the claimant has been diagnosed with asthma, chronic obstructive pulmonary disease
       (COPD), and obesity. His current evidence shows that the claimant is significantly

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Gay v. Commissioner of Social Security

       limited in his ability to climb ladders, ropes, or scaffolds and work in an environment
       with concentrated exposure to unprotected heights, vibrating tools, moving
       machinery, dust, fumes, gases, and smoke.

A.R. 14. Later in his opinion, he stated that because Gay had argued that “the prior decision did not

take into account all of [Gay’s] impairments including [Gay’s] degenerative disc disease, asthma,

COPD, and obesity, and [Gay’s] alleged limited bending/twisting,” his analysis would “continue[]

with consideration of all the diagnoses since the amended onset date of October 22, 2005.”2 A.R.

16.

       After addressing the prior decision, ALJ Scallen applied the five-step sequential evaluation

process for determining whether a person is disabled. See 20 C.F.R. § 404.1520. He applied steps

one through three and then turned to Gay’s residual functional capacity. After finding Gay not

entirely credible, ALJ Scallen addressed the medical evidence. He discussed the records from one

of the doctors whose records ALJ Wilenkin had examined and also discussed the additional evidence

Gay had submitted with his second application. He did not discuss the records from the other two

doctors that Gay had submitted to ALJ Wilenkin.

       Ultimately, ALJ Scallen disagreed with ALJ Wilenkin’s conclusion that Gay could perform

his past relevant work. He concluded that Gay could do only light work that involved no climbing

of ropes, ladders, or scaffolds or exposure to solvents, paint, smoke, and fumes and only occasionally

involved climbing ramps and stairs, balancing, stooping, kneeling, crouching, or crawling. ALJ

Scallen determined that this residual functional capacity rendered Gay unable to perform his past


       2
      The onset date in ALJ Scallen’s opinion is probably a mistake and should be October 2,
2005—the amended onset date Gay specified.

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Gay v. Commissioner of Social Security

relevant work as a cook or housekeeper. However, Gay could perform other work available in the

national economy, such as working as an assembler, packager, or sorter. In the end, ALJ Scallen

concluded that Gay had not been under a disability since October 22, 2005.

       The Appeals Council declined Gay’s request for review, rendering ALJ Scallen’s decision

the final decision of the Commissioner of Social Security. See 20 C.F.R. § 404.955; Wilson v.

Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). Gay then sought judicial review. See

42 U.S.C. 405(g). Both parties filed motions for summary judgment.

       A magistrate judge wrote a Report and Recommendation recommending that the district

court affirm. The magistrate found with little discussion that ALJ Scallen had not reopened ALJ

Wilenkin’s decision, and further found that substantial evidence supported ALJ Scallen’s decision.

The district court adopted the Report and Recommendation to affirm, granted the Commissioner’s

summary judgment motion, and denied Gay’s motion. After receiving an extension of time from the

district court, Gay appealed.
                                         II. ANALYSIS

A. Standard of Review

       Our review of the Commissioner’s final decision is limited to determining whether

substantial evidence supports that decision. 42 U.S.C. § 405(g). “Substantial evidence” means

“more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation

omitted).




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B. Legal Principles

       The primary dispute in this case is whether ALJ Scallen reopened ALJ Wilenkin’s prior

decision. The parties believe this dispute matters because if ALJ Scallen reopened the prior decision,

he was responsible to reevaluate de novo all the evidence considered by ALJ Wilenkin. Since it

appears that ALJ Scallen did not consider the records from two doctors that were considered by ALJ

Wilenkin, Gay contends that ALJ Scallen shirked this responsibility. Because the parties do not raise

the issue, we will assume for purposes of this case that an ALJ must reconsider all the old evidence

when reopening a prior decision.

       When presented with an application for benefits after a prior application has been denied, an

ALJ must consider how the existence of the prior decision impacts the second application. If the

claimant can show “good cause”—such as new and material evidence that relates back to the prior

period—and meets the applicable time limit, the ALJ can reopen the prior decision and readjudicate

the prior period. See 20 C.F.R. §§ 404.988, 416.1488. A decision not to reopen is within the ALJ’s

discretion and is unreviewable by the courts unless a constitutional issue is involved. See Califano

v. Sanders, 430 U.S. 99, 107-08 (1977); Bogle v. Sullivan, 998 F.2d 342, 346 (6th Cir. 1993). In the

absence of reopening, the ALJ adjudicates the subsequent period, but is bound by relevant factual

findings made with respect to the prior period unless there is new and material evidence as to those

findings. See Drummond, 126 F.3d at 840-43; 20 C.F.R. § 404.957(c)(1); HALLEX I-2-4-40, 2005

WL 1870458 (S.S.A. March 8, 2013).

       When reopening has been requested, it is important that the ALJ make clear whether or not

the prior period has been reopened. In some cases, lack of a clear explanation can require a remand

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Gay v. Commissioner of Social Security

for clarification. See Bailey ex rel. Bailey v. Astrue, No. 10-262-DLB, 2011 WL 4478943, at *5

(E.D. Ky. Sept. 26, 2011); Haddix v. Astrue, No. 10-30-ART, 2010 WL 4683766, at *4 (E. D. Ky.

Nov. 12, 2010); see also Gossens v. Sec. of Health & Human Servs., 859 F.2d 922 at *2 (6th Cir.

1988) (Per Curiam) (Table Decision) (remanding for clarification when the ALJ did not make clear

which prior determination he was reopening). A clear explanation allows the courts to review the

ALJ’s decision efficiently and meaningfully. A muddled approach can require the Commissioner,

the claimant, and the courts to expend time and resources attempting to figure out what the ALJ did.

Unfortunately, such is the case here.

C. Application

       Although we do not require an express statement of reopening before we will find that an

ALJ reopened a prior decision, see Crady v. Sec. of Health & Human Servs., 835 F.2d 617, 620 (6th

Cir. 1987), we find ourselves at a loss to discern whether ALJ Scallen reopened the earlier period

in this case. Gay vehemently contends that ALJ Scallen reopened the prior decision, and several

aspects of his decision support Gay’s contention. Moreover, Gay met the time limit for reopening,

so ALJ Scallen was permitted to reopen. The res judicata discussion in his opinion was apparently

written in response to Gay’s letter requesting a reopening, but ALJ Scallen neither explicitly nor

impliedly declined Gay’s request. Instead, ALJ Scallen stated that his analysis included all diagnoses

since October 22, 2005, thereby indicating that he was readjudicating part of the period already

adjudicated by the first decision. ALJ Scallen diverged from ALJ Wilenkin by determining that Gay

could not perform his past relevant work, and there is no indication that he limited this alteration to

the period subsequent to ALJ Wilenkin’s decision.

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Gay v. Commissioner of Social Security

       In contrast to these indicia of reopening, ALJ Scallen cited two cases—Drummond and

Dennard—and related Acquiescence Rulings that all pertain not to reopening but rather to

adjudicating the subsequent period based in part on evidence from the prior period. If ALJ Scallen

intended to reopen the prior decision, we would expect him to cite the applicable regulation that

permits reopening. By citing Drummond and Dennard, ALJ Scallen indicated that he intended to

adjudicate the subsequent period but not reopen ALJ Wilenkin’s decision. But if ALJ Scallen

intended to adjudicate only the subsequent period, why did he say that his analysis extended back

to 2005?

       Ultimately, ALJ Scallen’s opinion presents a conundrum that we find impossible to solve.

If an ALJ intends to reopen prior decisions, he or she should say so, say why, and cite the appropriate

regulation that permits reopening. If an ALJ intends instead to adjudicate only the subsequent period

in light of changed circumstances, he or she should make this approach clear and cite the appropriate

cases and acquiescence rulings. Regardless of which path the ALJs take, they must clearly state their

approach. Since in this case the ALJ’s approach was not clear, we remand for clarification.

                                        III. CONCLUSION

       We VACATE the district court’s judgment and REMAND the case to the district court with

instructions to remand the case to the Social Security Administration for clarification.




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