                          File Name: 06a0578n.06
                           Filed: August 11, 2006
               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          No. 05-6540

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DENNIS ANDERSON,                                 )
                                                 )
       Plaintiff-Appellant,                      )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
v.                                               )   WESTERN DISTRICT OF TENNESSEE
                                                 )
COMMISSIONER OF SOCIAL SECURITY,                 )
                                                 )                  OPINION
       Defendant-Appellee.                       )
                                                 )


Before: GILMAN and COOK, Circuit Judges; DOWD, Senior District Judge.*

       DOWD, J., Senior District Judge. Dennis Anderson (“appellant”) brought an action

pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner

of Social Security (“Commissioner”) denying his applications for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act (the “Act”) and for Supplemental Security Income

(“SSI”) under Title XVI of the Act. He now appeals from the district court’s order affirming the

Commissioner’s denial of benefits. Appellant claims that the decision is not supported by

substantial evidence and that the Commissioner failed to supply a complete administrative record

to the district court. For the reasons set forth below, we AFFIRM in part and VACATE in part the




       *
        The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
(No. 05-6540)

district court’s decision, and REMAND the case to the district court with instructions to REMAND

to the Commissioner for further proceedings consistent with this opinion.

                                                 I.

       Appellant was born on December 8, 1954. He has a sixth grade education and, as of the

administrative hearing on October 3, 2001, had not obtained a GED although he had been attending

classes for 18 months.

       Appellant filed his application for SSI on November 9, 1999, alleging a disability onset date

of September 15, 1992 and disability as a result of limited eye sight, neck, elbow, shoulder and knee

problems, and stress. The application was denied initially and on reconsideration. Appellant sought

a hearing, which was conducted before Administrative Law Judge (“ALJ”) John P. Garner on

October 3, 2001. Appellant, represented by counsel, testified at the hearing, as did Lisa Courtney,

a vocational expert (“VE”).

       An unfavorable decision was issued on January 25, 2002. With respect to the DIB

application, the ALJ determined that since there was no new and material evidence to warrant

reopening the application, the doctrine of res judicata precluded revisiting the period of September

15, 1992 to June 28, 1996.1 The ALJ declared that the sole issue was “whether the claimant is entitle

[sic] to Supplemental Security Income benefits beginning November 9, 1999.” He concluded at step

two of the five-step evaluation that appellant did not suffer a severe mental impairment and, at step


       1
         Appellant had filed the application for DIB on August 4, 1994. After denial initially and
on reconsideration, he requested a hearing. On June 28, 1996, his disability application was denied
by the ALJ. His appeal was denied on September 25, 1999 on the ground that it was untimely filed.
No further action was taken. Instead, in his November 1999 SSI application, appellant simply
alleged the same disability onset date of September 15, 1992.

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(No. 05-6540)

four, that “[t]he claimant’s past relevant work as auto mechanic did not require the performance of

work-related activities precluded by his residual functional capacity.” Therefore, appellant’s SSI

application was denied. A timely appeal was also denied by the Appeals Council on March 26,

2004, making the ALJ’s ruling the final decision of the Commissioner.

       On May 24, 2004, appellant filed his lawsuit seeking judicial review of the administrative

action. The district court affirmed the Commissioner’s decision on July 21, 2005 and appellant

timely appealed arguing that the ALJ’s findings at step two and step four of the five-step process

were not supported by substantial evidence and that the Commissioner erred in failing to include in

the administrative record documentation within its possession necessary for the district court to

determine whether or not he had been represented by counsel in his 1994 claim for benefits.

                                                 II.

                                                 A.

       Under 42 U.S.C. § 405(g), the ALJ’s findings are conclusive if they are supported by

substantial evidence. Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 851 (6th Cir. 1986)

(this court’s review “is limited to determining whether there is substantial evidence in the record to

support the findings”). “ ‘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.’ ” Kirk

v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v.

Perales, 402 U.S. 389, 401 (1971)).

       We “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions

of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984); see also Foster v. Halter, 279



                                                  3
(No. 05-6540)

F.3d 348, 353 (6th Cir. 2001) (the court should defer to the agency’s decision if it is supported by

substantial evidence, “even if there is substantial evidence in the record that would have supported

an opposite conclusion”) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

                                                 B.

                                                  1.

       Appellant argues that substantial evidence was lacking to support the ALJ’s decision that res

judicata constituted a barrier to reopening his 1994 application. He makes this argument because

the Commissioner failed to include in the record before the ALJ any documents relating to that prior

application, even though the ALJ’s decision suggests knowledge of the earlier denial. Appellant

argues here that he was “penalized” by this failure to supply a proper record because he did not have

access to “the pertinent information showing whether or not [he] was represented” at the time of the

1994 decision. He asks this court to remand with directions that the Commissioner be required to

provide the ALJ with the decisions and supporting documents relating to the 1994 application “in

order to determine whether and at what stage Appellant did and/or did not have representation.”

       As pointed out by the district court, ordinarily federal courts do not have jurisdiction to

review an ALJ’s decision not to reopen a prior application. The exception is where a claimant raises

a colorable constitutional claim. See Willis v. Sec’y, Health and Human Servs., 802 F.2d 870, 873

(6th Cir. 1986) (citing Califano v. Sanders, 430 U.S. 99, 107-08 (1977)). In this Circuit, a colorable

constitutional claim is established and judicial review is proper where the claimant’s mental capacity

prevented him or her from pursuing administrative remedies. Id. However, under Social Security

Ruling (“SSR”) 91-5p, a colorable mental incapacity claim is established only when the fact of



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(No. 05-6540)

mental incapacity is coupled with a showing of lack of anyone legally responsible for prosecuting

the claim.

       Appellant argues in his opening brief that, lacking the full record, the ALJ could not have

determined whether or not he was represented by counsel at the time of the decision denying the

1994 application. In his reply brief, appellant adds to the argument that, due to his sixth grade

education and third grade reading level, along with his deficient logic, increased paranoia and

feelings of hopelessness and helplessness, he lacked the mental capacity to pursue his claim when

he missed the deadline for filing his appeal following the denial of his 1994 application.

       The district court acknowledged that the ALJ did not apply the standard articulated in SSR

91-5p, but further concluded that “plaintiff has failed to show that he had no one legally responsible

for prosecuting his claim at the time of the prior application and thus has failed to raise a colorable

constitutional claim.” (District Court Opinion, at 16).

       While it is true that the ALJ is limited to the record and that the Commissioner has the

burden of providing that record, 42 U.S.C. § 405(g), it is a plaintiff’s burden to show mental

incapacity and the lack of counsel.2 In Cottrell v. Sullivan, 987 F.2d 342 (6th Cir. 1992), the court

rejected an argument similar to our appellant’s, stating as follows:

       The suggestion that the plaintiff might have been able to demonstrate a violation of
       his constitutional rights if the Secretary had provided him a transcript is not
       persuasive. The plaintiff knew perfectly well what evidence had been submitted to
       the agency, and there is no constitutional requirement that the Appeals Council have


       2
         In fact, SSR 91-5p, does not require legal counsel; it merely requires a showing that there
was “no one legally responsible for prosecuting the claim (e.g., a parent of a claimant who is a
minor, legal guardian, attorney, or other legal representative) at the time of the prior administrative
action[.]”

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(No. 05-6540)

        a complete transcript before deciding whether to grant an application to reopen. See
        Blacha v. Secretary of HHS, 927 F.2d 228, 231-32 (6th Cir.1990).

Id. at 345.

        During the administrative hearing conducted on October 3, 2001, Anderson was represented

by counsel who stated that “there’d been a previous Decision resulting from a hearing of February

23, I’m not sure if it’s ‘95 or ‘96, Your Honor. I don’t think I can go back behind that. I don’t have

any new evidence to support re-opening.” (Record at 579-80, emphasis added). Clearly, there was

an opportunity at that time to either present independent evidence or to ask that the Commissioner

produce a more complete record. Since Anderson failed to do so, he has not met his burden.

        The court finds no error in the district court’s ruling with respect to the ALJ’s decision not

to reopen the earlier application and, to that extent, we affirm the district court.

                                                  2.

        We turn next to the remaining arguments of the appellant, all relating to whether there is

substantial evidence to support the ALJ’s determination.

        Appellant challenges the ALJ’s determination that he failed to establish a severe mental

impairment. There is substantial evidence in the record that appellant’s mental impairment, if any,

is slight and has only minimal, intermittent effect on his daily activities. Therefore, we reject this

argument.

        Appellant also challenges the ALJ’s determination that he retained the capacity for a full

range of medium level work. In particular, appellant argues that, in evaluating his residual

functional capacity, the ALJ failed to give good reasons for crediting the opinions of consulting

sources over those of his treating physicians. We reject this argument, finding that the ALJ did give

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(No. 05-6540)

reasons for discounting the opinion of Dr. DeSouza, appellant’s treating physician. The ALJ

concluded, properly in our view, that the doctor’s overall treatment notes did not support and were

inconsistent with his conclusory assertion that appellant was disabled.

        Finally, turning to appellant’s remaining argument, we must agree that substantial record

evidence is lacking to support the ALJ’s determination that appellant’s “past relevant work as auto

mechanic did not require the performance of work-related activities precluded by his residual

functional capacity.” The evidence as to his past relevant work is conflicting. Although a

typewritten Work History Report indicates that he was a “mechanic” and that he did “automotive

repair,” his testimony at the administrative hearing was that he did “body work.” Since appellant

has a sixth grade education and reads at a third grade level, it is not surprising that he did not detect

any error in his Work History Report, if he ever saw it. That form was probably completed by his

attorney. This Court suspects that the hearing testimony, not the Work History Report, is accurate;

however, at the very least, this is a significant conflict in the evidence. The ALJ failed to

acknowledge this conflict in the evidence or offer any explanation for the conclusion that Anderson

previously worked as an “auto mechanic” rather than an auto body repairman. See Peabody Coal

Co. v. Hill, 123 F.3d 412, 415 (6th Cir. 1997) (“In deciding whether the substantial evidence

requirement is satisfied, we consider whether the administrative law judge adequately explained the

reasons for crediting certain testimony and evidence over other evidence in the record . . . .”). All

of the VE’s testimony at the hearing was based on the possibly incorrect assumption that appellant

had been an auto mechanic. This Court is in no position to determine whether the VE’s conclusions

would be any different had they been based on past relevant work as an auto body repairman. That



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(No. 05-6540)

matter must be resolved administratively. Therefore, due to this conflict in the record, we conclude

that substantial evidence is lacking to support the ALJ’s determination that appellant could return

to his past relevant work.

                                                III.

       For the reasons discussed above, we AFFIRM in part and VACATE in part the district

court’s decision, and REMAND the case to the district court with instructions to REMAND to the

Commissioner for further proceedings consistent with this opinion.




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