                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0489n.06
                              Filed: July 13, 2006

                                       Case No. 04-2437

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 AGNES I. SWARTZ,                                    )
                                                     )
           Plaintiff-Appellant,                      )
                                                     )      ON APPEAL FROM THE
                  v.                                 )      UNITED STATES DISTRICT
                                                     )      COURT FOR THE EASTERN
 JO ANNE B. BARNHART,                                )      DISTRICT OF MICHIGAN
 COMMISSIONER OF SOCIAL SECURITY,                    )
                                                     )
           Defendant-Appellee.                       )
                                                     )
 _______________________________________             )




BEFORE: KEITH and BATCHELDER, Circuit Judges; OBERDORFER*, District Judge.

       OBERDORFER, District Judge. Plaintiff-appellant, Agnes I. Swartz, is a 66-year old

woman with significant physical and mental impairments. The present appeal concerns her

application for Social Security Disability Insurance Benefits for the period from September1992,

when she was last employed, through December 31, 1997, when her “insured status” expired.1

An administrative law judge ruled that she was not entitled to any benefits because during that

time she had the “residual functional capacity” to perform a significant number of jobs in the


       *
      The Honorable Louis F. Oberdorfer, United States District Judge for the District of
Columbia, sitting by designation.
       1
         On December 1, 2001, Swartz began receiving Supplemental Security Income disability
benefits, a benefit that is not dependent on proof of “insured status.”
national economy. For the reasons that follow, we conclude that the Administrative Law Judge’s

decision is not supported by substantial evidence. We REVERSE and REMAND for further

proceedings in accordance with the following opinion.

                                     I. LEGAL STANDARDS

       In order to qualify for Social Security Disability Insurance Benefits, Swartz must have

been “disabled” during the period of her disability insurance coverage. In this context, a

disability is defined as “an inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment that can be expected to result in death or

that has lasted or can be expected to last for a continuous period of not less than 12 months.” 42

U.S.C. § 423(d)(1)(A). Federal regulations establish a five-part sequential evaluation process for

determining when a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). As soon as a

determination of disabled or not disabled can be made, the evaluation process ends. Id. In order,

the five steps are: (1) if the claimant is “doing substantial gainful activity,” he or she is “not

disabled”; (2) if the claimant does “not have a severe medically determinable physical or mental

impairment that meets the duration requirement . . . or a combination of impairments that is

severe and meets the duration requirement,” the claimant is “not disabled”; (3) if the claimant

has a severe impairment and the “medical severity” of the claimant’s impairment(s) “meets or

equals” a listed impairment, the claimant is “disabled”; (4) if the “medical severity” does not

meet or equal a listed impairment, the claimant’s “residual functional capacity” is assessed and if

the claimant can do his or her “past relevant work,” the claimant is “not disabled”; and (5) if the

claimant cannot do his or her “past relevant work,” but has the residual functional capacity,

taking into account the claimant’s “age, education, and work experience” to “make an


                                                   2
adjustment to other work,” the claimant is “not disabled.” Id. “Residual functional capacity” is

defined as “the most that [an individual] can still do despite [his or her] limitations.” 20 C.F.R. §

404.1545.

                                            II. FACTS

       Agnes Swartz was born in 1940. According to her sister, Eunice Good, Swartz suffered

from childhood encephalitis. As a result, Good says, Swartz has “always had difficulty with

learning new skills and problem solving,” “has difficulty retaining information and cannot

follow through on more complex instructions,” and “is easily confused and frustrated with many

domestic tasks,” “can do housecleaning, but cannot cook and plan a meal,” “requires some level

of support in her home environment,” and “[o]utside of her home environment she is easily

overwhelmed.” AR 251.

       Swartz graduated from high school, but with a very mediocre academic record. She then

worked for a number of years as a nurse’s aide for various employers. During her entire

adulthood, Swartz never lived alone, residing with either her parents, now deceased, and/or one

or more of her sisters.

       In June 1992, Swartz started work as a nurse’s aide at a long-term care facility. After a

90-day probationary period, she received performance evaluations from her direct supervisor and

from the director of nursing at the facility, Jane Henderson. AR 405-07. Her direct supervisor

rated her performance on a scale of 1 to 5 (with 1 being outstanding, 2 being very good, 3 being

satisfactory, 4 being needs improvement, and 5 being unsatisfactory) as follows:

       Job Knowledge                                          3
       Productivity                                           4
       Quality                                                3
       Relationships with Others                              5

                                                 3
       Dependability                                        3
       Work Habits                                          4
       Initiative                                           4
       Acceptance of Supervision and Directions             4

She also commented that Swartz “[n]eeds lots of improvement – needs to communicate” in her

relationships to others and rated Swartz’s overall performance as “needs improvement,”

especially Swartz’s ability to communicate with families and associates and to complete tasks in

a timely manner. AR 406.

       Henderson’s evaluation similarly stated that Swartz’s work performance “need[ed]

improvement,” identifying the “primary areas requiring improvement” as Swartz’s “ability to

communicate satisfactorily with residents, families and other staff members,” her “ability to

complete [her] assigned responsibilities in a more timely manner,” and her “limited availability

for work” as a part-time employee. AR 407. Henderson recommended an additional 60-day

probationary period for Swartz. Instead of consenting to an extension of her probationary

period, Swartz quit. She has not worked since.

       According to Swartz, she has always had problems keeping up with the work at her jobs,

although she would often “work extra” to get it all done. AR 37-38. And according to Dolores

Swartz, Swartz’s sister-in-law and a nurse, who both knows Swartz personally and has

occasionally worked with her, Swartz “tried very hard, did very good work but it was slow

work.” AR 43.

       Between the time she ceased working and December 31, 1997, the end of the insured

period, Swartz never saw a psychiatrist or sought any other form of mental health treatment.

However, she did have significant contact during that time with her family physician, Dr.

Michael Wagner, who subsequently offered his perspective on “some of Agnes’

                                                 4
emotional/cognitive problems” prior to December 31, 1997. In Dr. Wagner’s opinion, Swartz

had suffered from a number of mental health problems for her entire life. In a written statement,

dated December 3, 2002, Dr. Wagner explained:

       In the office I have been treating her for nine years now, she always presented
       with a flat affect. She typically comes in with a relative to the appointments.
       When she was living with her sister Leona, she would accompany her during the
       examination. This is so her sister would have a handle on what advice I have
       given to Agnes due to the problems that Agnes has understanding what I have
       told her. Agnes has always been slow to respond to questions. She needs to think
       about the question before she responds. She appears to have low self-esteem.
       She can become easily upset.

              From a mental/cognitive standpoint, she just appears like she is not up to
       speed. By analogy, if she were in school, she would probably need to be in a
       Special Education class.

               ...

              . . . Based upon treating Agnes since 1993, the problems that I have
       described appear to be something that she has had all her life.

AR 408 (emphasis added).

       In July 2001, Dr. George Pestrue, from the Michigan Disability Determination Service,

began his evaluation of Swartz’s mental health. Based on a face-to-face evaluation and other

testing information, Dr. Pestrue preliminarily concluded that Swartz “appeared to have

significant cognitive deficits.” AR 243-250. Dr. Pestrue then conducted further face-to-face

testing, testing her IQ at 72, her reading level at 5th grade, her spelling ability at 6th grade, her

math skills at 4th grade and her overall mental age at 11 years, 9 months. Describing “her

combined cognitive/verbal and visual-motor skills” as “in the borderline defective range, he

diagnosed Swartz as having “Borderline Intellectual Functioning.” AR 267-28. After further

face-to-face testing, Dr. Pestrue concluded that Swartz’s “memory skills varied from the


                                                   5
defective range to the normal range,” with “most of her combined memory skills” falling “in the

borderline range.” AR 284-86. As a result, he added “Borderline Memory Functioning” and

“Dependent Personality Disorder” to his diagnosis of Swartz’s conditions. In summary, Dr.

Pestrue explained his diagnoses as follows:

       This examiner has seen this client on three occasions. He saw her for a complete
       mental status examination on 25 July 2001, for intelligence testing on 12
       September 2001 and for this memory examination. It has become apparent that
       she is suffering from a severe dependent personality disorder which was not noted
       by this examiner in previous reports. It has become more apparent recently
       because her sister with whom she has been living is getting married and will leave
       the home. This means that the client will be left alone in the home. This is
       causing her a great amount of stress. She is uncertain how she will exist without
       her sister to rely on. This diagnoses is now being included along with the
       previous diagnoses of major depression and borderline intellectual functioning.
       All of these problems appear to be long standing. All of them have been present
       since her childhood.

Id. (emphasis added).

       In November 2002, Dr. Pestrue completed a Mental Residual Functional Capacity

Assessment of Swartz. AR 409-410 (Nov. 25, 2002). He assessed her as “markedly limited” in

her “ability to understand and remember detailed instructions,” her “ability to carry out detailed

instructions,” her “ability to maintain attention and concentration for extended periods,” her

“ability to perform activities within a schedule, maintain regular attendance, and be punctual

within customary tolerances,” her “ability to interact appropriately with the general public,” her

“ability to ask simple questions or request assistance,” her “ability to set realistic goals or make

plans independently of others,”and her “ability to accept instructions and respond appropriately

to criticism from supervisors.” AR 409-10. He assessed her as “moderately limited” in her

“ability to remember locations and work-like procedures,” her “ability to sustain an ordinary

routine without supervision,” her “ability to make simple work-related decisions,” her “ability to

                                                  6
respond appropriately to change in the work setting,” and her “ability to be aware of normal

hazards and take appropriate precautions. Id. Finally, he assessed her as “not significantly

limited” in her “ability to carry out simple, one or two-step instructions,” and in her “ability to

work in coordination with or proximity to others without being distracted by them.” Id.

                                III. PROCEDURAL HISTORY

       Swartz had Social Security Disability Insurance coverage from the time she ceased

working in 1992 until December 31, 1997. She has filed two applications seeking benefits under

that coverage. Her first application, filed on November 8, 1994 (the “1994 application”), was

denied on January 4, 1995. Swartz, who was not represented by counsel at the time, did not

appeal. She filed a second application on April 17, 2001 (the “2001 application”), claiming that

she was disabled from September 1992 through December 31,1997 due to certain mental

disabilities.”2 Because the denial of the 1994 application barred her from recovering benefits for

the earlier part of the insured period, Swartz also sought to reopen her 1994 application.

       On December 3, 2002, an Administrative Law Judge held a hearing at which Swartz

testified and presented other evidence in support of her application. In addition to the evidence

previously described, the record includes the opinions of two non-treating physicians, Dr. Arthur

Dundon and Dr. Robert L. Newhouse, each of whom reviewed Swartz’s file and completed a

Psychiatric Review and a Mental Residual Functional Capacity Assessment, and the testimony

of a vocational expert.




       2
       Swartz also claimed to have been disabled by physical health problems and depression.
However, the ALJ concluded that neither rendered Swartz disabled prior to December 31, 1997,
and Swartz did not appeal that aspect of the ALJ’s decision.

                                                  7
       Dr. Dundon reviewed Swartz’s file and prepared his reports in August and October of

2001. He concluded that Swartz suffered from “borderline intellectual functioning,” a

“medically determinable impairment,” but not an impairment that satisfied the diagnostic criteria

for an “Organic Mental Disorder.” AR 253-266. In his Psychiatric Review, on a scale of none

to extreme, he rated as “moderate” Swartz’s “degree of limitation” for “difficulties in

maintaining social functioning” and for “difficulties in maintaining concentration, persistence, or

pace.” Id. In his Mental Residual Functional Capacity Assessment, he rated Swartz as

“moderately limited” in “the ability to understand and remember very short and simple

instructions,” “the ability to carry out detailed instructions,” the ability to sustain an ordinary

routine without special supervision,” “the ability to interact appropriately with the general

public,” and “the ability to get along with coworkers or peers without distracting them or

exhibiting behavioral extremes,” but markedly limited in nothing. AR 269-72. He found that

Swartz “could not understand/remember/carry out complex technical instructions on a sustained

basis,” “would have some problems maintaining attention and concentration on a sustained

basis,” and “would not work well in large groups or with public,” but his ultimate conclusion

was that Swartz “could adapt,” and “retains ability to do simple tasks on a sustained basis.” Id.

       Dr. Newhouse completed his “Psychiatric Review” and “Mental Residual Functional

Capacity Assessment” in March 2002. He diagnosed Swartz as suffering from an “Organic

Mental Disorder,” a “listed” impairment, AR 385, and a “Personality Disorder,” another “listed”

impairment, AR 391. In his opinion, Swartz had a “marked” degree of limitation in

“Restrictions of Activities of Daily Living,” and a “moderate” degree of limitation in

“Difficulties in Maintaining Social Functioning” and “Difficulties in Maintaining Concentration,


                                                   8
Persistence, or Pace.” AR 394. He also found her “markedly limited” in her “ability to maintain

attention and concentration for extended periods,” and her “ability to complete a normal

workday and workweek without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number and length of rest periods,” and

“moderately limited” in her “ability to understand and remember detailed instructions,” her

“ability to carry out detailed instructions,” her “ability to perform activities within a schedule,

maintain regular attendance, and be punctual within customary tolerances,” and her “ability to

work in coordination or proximity to others without being distracted by them.” AR 398-99.

       The vocational expert, Judith Findora, testified that an hypothetical individual “with the

same age and educational background” as Swartz and with “non-exertional limitations of no

acute vision required, no complex tasks, define that as one and two step only, simple, rote tasks,”

“[n]o hourly quotas, as in [an] assembly line type job,” and “[n]o dealing with the general public,

minimal work activity interaction with coworkers, minimal supervision” would not be able to do

Swartz’s past work as a nurse’s aide, but that there would be jobs in the region compatible with

these limitations, including in the medium exertion category the job of janitor and in the light

exertion category the job of housekeeper. However, she testified, if that same hypothetical

individual also had either “[n]o useful ability to complete a normal work load within the

prescribed daily schedule,” “[n]o ability to deal with supervision,” an “inability to follow

directions,” “an inability to relate to coworkers or supervisors, problems that would arise at the

work place,” or was unable to “meet acceptable productivity,” that individual would not be able

to obtain “competitive employment.” AR 53-57.




                                                  9
         On February 12, 2003, the administrative law judge issued a written opinion denying

Swartz’s 2001 application. Applying the five-step test, the ALJ concluded (1) that Swartz was

not performing substantial gainful work; (2) that Swartz had a severe impairment of “organic

mental disorder”; (3) that Swartz would not be presumed disabled because her “organic mental

disorder” did not meet or equal a listed impairment; (4) that Swartz’s impairments would have

prevented her from doing her past relevant work (as a nurse’s aide); but (5) that Swartz retained

the residual functional capacity to perform a significant number of jobs in the national economy.

Specifically, the ALJ concluded that Swartz, during the insured period:

         retained the residual functional capacity to perform work that did not require
         acute vision, complex tasks involving more than 1 or 2 step tasks, hourly quotas
         in assembly line type work, dealing with the general public, more than minimal
         supervision, and more than minimal work interaction with co-workers

AR 22. Taking into consideration Swartz’s age, education, and past relevant work experience,

the ALJ then concluded that even though Swartz could not perform her past relevant work as a

nurse’s aide and “ha[d] no transferable skills,” there were a “significant number of jobs in the

national economy that she could perform,” such as work as a janitor or housekeeper.

Accordingly, the ALJ concluded, Swartz was “not disabled” during the relevant time period and

not entitled to benefits. AR 21, 23.

         The ALJ also ruled that Swartz was not entitled to have her earlier case reopened

because:

         [she] was able to pursue an appeal but failed to do so. Her new application was
         not filed until April 17, 2001, which is more than 4 years after the date of the
         prior unfavorable decision. Thus, the prior decision is beyond the period during
         which it could be reopened for good cause, such as new and material evidence.
         There is no exception in this case to allow reopening after 4 years.

AR 15.

                                                10
       Swartz timely sought review of the ALJ’s decision by the Appeals Council for the Social

Security Administration on the ground that “the decision is against the weight of the evidence.”

On April 14, 2003, the Appeals Council summarily denied Swartz’s request for review,

rendering the ALJ’s decision the “final decision of the Commissioner of Social Security” in the

case. AR 6.

       On July 1, 2003, Swartz filed a complaint in federal district court against the

Commissioner of Social Security, challenging the Social Security Administration’s denial of her

2001 application for disability insurance benefits and refusal to reopen her 1994 application.

The Commissioner filed a motion for summary judgment; Swartz filed a motion to remand for

reconsideration. The district court referred both motions to a magistrate for a report and

recommendation. On June 21, 2004, the magistrate recommended that the district court deny

Swartz’s motion to remand and grant the Commissioner’s motion for summary judgment.

Overruling Swartz’s objections, the district court adopted the magistrate’s report and

recommendation. Swartz then filed the present appeal.

                                        II. DISCUSSION

       On appeal, Swartz challenges the ALJ’s conclusion that she was not disabled during the

relevant time period and his refusal to reopen her 1994 application.

A.     Standard of Review

       The court applies a substantial evidence standard in reviewing the administrative denial

of Social Security disability benefits. See Cutlip v. Secretary of Health & Human Servs., 25

F.3d 284, 286 (6th Cir.1994). “Substantial evidence is that which is greater than a scintilla but

less than a preponderance. In essence, substantial evidence is ‘such relevant evidence as a


                                                11
reasonable mind might accept as adequate to support a conclusion.’” Walker v. Secretary of

Health & Human Servs., 980 F.2d 1066, 1070 (6th Cir.1992) (quoting Richardson v. Perales,

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

B.     ALJ’s Ruling that Swartz was “Not Disabled”

       Swartz argues that the ALJ’s ruling that she was not disabled before December 31, 1997

is not supported by substantial evidence because: (1) in determining whether Swartz suffered

from any severe impairments (step two of the analysis), the ALJ erroneously identified Swartz’s

only severe impairment as “Organic Mental Disorder,” instead of also including her “Borderline

Intellectual Functioning” and “Dependent Personality Disorder”; and (2) in assessing Swartz’s

“residual functional capacity” (step five of the analysis), the ALJ ignored Swartz’s 1992 negative

work performance evaluation, mistakenly believing that it had been completed post-1997, and

otherwise failed to account for evidence that she would have been unable to keep up with the

pace at any job, not merely a job with hourly quotas.

       Even assuming that the ALJ erred by not including “Borderline Intellectual Functioning”

and “Dependent Personality Disorder” as additional severe impairments in step two of its

analysis, the error is harmless as long as the ALJ found at least one severe impairment and

continued the sequential analysis and ultimately addressed all of the claimant’s impairments in

determining her residual functional capacity. See Maziarz v. Secretary of Health and Human

Servs., 837 F.2d 240, 244 (6th Cir. 1987). Thus, the critical issue on appeal is simply whether

substantial evidence supports the ALJ’s conclusion that Swartz, during the insured period,

retained the residual functional capacity to perform 1-2 step jobs not involving interaction with




                                                12
the public, more than minimal supervision, more than minimal interaction with co-workers, or

hourly quotas.

       In determining Swartz’s “residual functional capacity,” the ALJ analyzed the evidence as

follows:

       The claimant testified that she was unable to work during the period at issue due
       to . . . and other mental problems. However, the medical reports and other
       evidence fail to demonstrate disabling . . . mental problems on or before the date
       last insured of December 31, 1997.

       ...

       . . . On December 4, 1997, the only complaint [in a visit to her primary treating
       physician, Dr. Wagner] was of sinus problems. Thus, at a treatment visit shortly
       before the date last insured of December 31, 1997, the claimant was not reporting
       any . . . mental problems.

       ...

       The evidence of record also demonstrates that the claimant did not report severe
       mental problems until 2001, well after the date last insured. The claimant
       underwent a psychological evaluation at the expense of the Social Security
       Administration on July 25, 2001. This is the first time she was diagnosed to have
       major depression. . . .

       . . . Regarding other mental problems, IQ testing on September 12, 2001 showed
       a verbal IQ of 73, a performance IQ of 76, and a full scale IQ of 72. These scores
       are indicative of intelligence in the borderline range. Memory testing . . . in
       January 2002 showed the claimant’s memory was also in the range of borderline
       impairment. Dr. Wagner stated in a report dated December 3, 2002, that he has
       treated the claimant for 9 years and has noticed indications of mental slowness
       during that time. There is, however, no IQ testing or evidence showing a
       diagnosis of an organic mental disorder prior to the recent testing. The claimant
       was able to obtain a high school degree and was not in special education. She
       was able to work at a semi-skilled job as a nurse’s aide for many years.

       Dr. Wagner also stated that, during the 9 years he has treated the claimant, she has
       been able to handle performing normal daily activities. . . .

       Opinions of record concerning the claimant’s capacity to work have been
       considered in making this determination . . . . This includes consideration of

                                               13
       opinions from non-examining sources from the State Agency, who reviewed the
       evidence in connection with prior decisions on this case. No medical opinion can
       be given controlling weight unless it is supported by the medical evidence and
       consistent with other evidence of record.

       ....

       Regarding her mental capacity, Jane Henderson, RN submitted a report that the
       claimant has significant work-related limitations, including a slow pace and poor
       communication skills. However, this report is based on observations for the
       period of May 11, 1992 through September 1, 1992. Thus, it pertains to a period
       well after the date last insured and after the claimant’s severe depression began in
       2001. Therefore, this opinion is not entitled to significant weight regarding an
       assessment of the claimant’s condition on or before December 31, 1997.

       A treating physician, Dr. Pestrue, submitted a mental residual functional capacity
       assessment indicating that the claimant has marked limitations on her ability to
       work. However, the report was completed in November 2002 and is based on
       treatment dating back only to September 2001. Again, such an opinion cannot be
       given significant weight regarding the period on or before the date last insured of
       December 31, 1997.

       A psychiatrist from the State Agency [Dr. Dundon] reviewed the evidence of
       record from October 2001 and found the claimant able to do simple job tasks. . . .
       It was only on March 15, 2002, when [the more recent psychological] records
       were in the file that a psychiatrist from the State Agency [Dr. Newhouse] found
       the claimant unable to perform even simple job tasks. The undersigned is in
       agreement with the State Agency psychiatrists in finding the claimant able to
       perform simple job tasks, prior to the beginning of her severe depression in 2001.

       . . . All of the evidence regarding mental conditions dates from 3 to 4 years after
       the date last insured

AR 17-20 (emphasis added).

       The ALJ’s analysis includes one clear (and conceded) error: he dismissed as irrelevant

Swartz’s negative work performance evaluations from September 1992 on the ground that they

were completed “well after the date last insured and after the claimant’s severe depression began

in 2001.” Swartz contends that the 1992 work performance evaluations are significant because

they corroborate the more recent opinions of her treating physicians, Dr. Pestrue and Dr.

                                                14
Wagner, and one of the non-treating physicians, Dr. Newhouse, that notwithstanding more recent

mental health issues, e.g. depression, she has suffered from other disabling mental health

problems her entire life. Thus, Swartz argues, substantial evidence does not support the ALJ’s

determination that during the insured period she had the residual functional capacity to perform

simple one to two step jobs as long as there were no hourly quotas; rather, the evidence shows

that she would have had difficulty keeping up with the work pace at any job.

       Although the “substantial evidence” test is not overly demanding, we conclude that

substantial evidence does not support the ALJ’s finding that Swartz retained the residual

functional capacity to perform simple one to two step jobs as long as there were no hourly

quotas. The ALJ’s analysis reflects one clear error – the ALJ’s belief that the 1992 evaluations

dated from after the insured period – and fails to explain why no weight is given to the several

medical opinions that Swartz’s problems are life-long conditions. In essence, the ALJ accepts

the opinion of one non-treating physician (Dr. Dundon) over the opinions of two treating

physicians (one of whom had Swartz as a patient during the insured period, Dr. Wagner, and one

of whom treated her mental health issues, Dr. Pestrue) and one other non-treating physician (Dr.

Newhouse). The ALJ discounted Dr. Pestrue’s opinion because he only began treating Swartz in

2001, and he discounted Dr. Newhouse’s opinion because he reviewed Swartz’s file only after

Dr. Pestrue’s diagnoses had been added to it, but he never acknowledges Dr. Pestrue’s opinion

that all of the conditions he identified were likely to have been life-long problems. The ALJ’s

analysis also relies in part on the fact that Swartz did not seek any mental health help when she

visited Dr. Wagner in December 1997, without explaining why she would have sought such help




                                                15
from her family physician. The ALJ’s analysis also completely ignores Dr. Wagner’s, Swartz’s

sister’s and Swartz’s sister-in-law’s shared opinion that Swartz has always been slow.

       Without deciding whether Swartz would have had difficulty keeping up with the work

pace at any job, as she contends, we hold that the ALJ’s assessment of Swartz’s residual

functional capacity is not supported by substantial evidence because it ignores, without any

persuasive justification, all of the evidence in the record that Swartz’s organic mental disorder,

borderline intellectual functioning, and severe personality disorder were lifelong conditions,

arguably requiring a greater pace limitation in Swartz’s residual functional capacity. We will

remand in order to permit the ALJ in the first instance to decide whether an error-free assessment

of the evidence alters his residual functional capacity assessment and, if so, to reassess whether

with that additional limitation Swartz would have been able to perform any job during the

insured period.

C.     Denial of Motion to Reopen

       Swartz contends that the ALJ erred in refusing to reopen her 1994 application.

Generally, federal courts lack jurisdiction to review an administrative decision not to reopen a

previous claim for benefits. See Califano v. Sanders, 430 U.S. 99, 107-09 (1977). The only

exception to this rule is “where the Secretary’s denial of a petition to reopen is challenged on

constitutional grounds.” Id. at 109. Here, Swartz raises a constitutional issue, contending that

the denial of her motion to reopen her 1994 application deprives her of due process because at

the time her 1994 application was denied, in 1995, her mental disabilities prevented her from

understanding and pursuing her administrative remedies. Accordingly, this court has jurisdiction

to consider whether the ALJ properly denied Swartz’s motion to reopen.


                                                 16
       The ALJ denied the motion to reopen on the ground that it was out of time and that “the

medical reports and other evidence fail to demonstrate . . . mental problems on or before the date

last insured of December 31, 1997” that rendered Swartz unable to file a timely appeal. The

question on appeal is whether the ALJ’s finding that Swartz had the capacity to file a timely

appeal is supported by substantial evidence. Again, the ALJ’s error in ignoring the 1992 work

evaluations coupled with the failure to account for the medical opinions that many of Swartz’s

mental problems were lifelong conditions lead us to conclude that the finding is not supported by

substantial evidence and that a remand for further consideration is required. Thus, we will

remand in order to permit the ALJ in the first instance to decide whether an error-free assessment

of the evidence supports reopening. If the ALJ so concludes, then the fact that Swartz did not

seek this relief within four years of the initial denial will not matter. See Social Security Rule

95-1 (a request to extend the time for seeking review will be granted where the claimant has

“establishe[d] that he or she lacked the mental capacity to understand the procedures for

requesting review.”)

                                       III. CONCLUSION

       For the reasons stated in the foregoing opinion, the decision of the district court granting

summary judgment to the defendant-appellee and denying the plaintiff-appellant’s motion to

remand is REVERSED, and this matter is REMANDED to the district court with instructions to

remand to the Social Security Administration to reconsider its denial of Swartz’s 2001

application for benefits and motion to reopen her 1994 application for benefits.




                                                 17
