                   United States Court of Appeals,

                             Eleventh Circuit.

                               No. 94-2234.

                 John E. WOLFE, Plaintiff-Appellant,

                                    v.

       Shirley S. CHATER, Commissioner of Social Security
Administration1, Defendant-Appellee.

                               July 3, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 92-349-CIV-FTM-21D), L. Clure Morton,
Judge.

Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

     BIRCH, Circuit Judge:

     In this appeal, we review the district court's order affirming

an Administrative Law Judge's ("ALJ") denial of a claimant's

request   for   disability   consideration     and   disability   insurance

benefits under sections 216(i) and 223 of the Social Security Act,

as amended.     42 U.S.C. §§ 416(i), 423 (Supp.1995).        The district

court determined that the ALJ did not err in refusing to reopen two

prior ALJ decisions and in relying on vocational expert testimony

from prior hearings in reevaluating and adjusting the claimant's

educational level and past work level in applying the Medical


     1
      Effective March 31, 1995, the functions of the Secretary of
Health and Human Services in Social Security cases were
transferred to the Commissioner of Social Security. P.L. No.
103-296. Pursuant to Fed.R.App.P. 43(c), Shirley S. Chater,
Commissioner of Social Security, is substituted for Donna E.
Shalala, Secretary of Health and Human Services, as the defendant
in this action. Although we have substituted the Commissioner
for the Secretary in the caption, in the text we continue to
refer to the Secretary because she was the appropriate party at
the time of the underlying action.
Vocational Guidelines found in the Code of Federal Regulations

("C.F.R.").        We find that the district court erred by not holding

that       the   ALJ's   reconsideration   on    the   merits   of   the   prior

applications constituted a de facto reopening of those decisions.

We also find that the district court erred by not finding that

there was insufficient evidence for the ALJ to hold that the

claimant's educational level was "marginal."                On that ground, we

remand the case to the district court with direction to remand to

the Secretary of the Department of Health and Human Services to

make further findings of fact.

                                  I. BACKGROUND

       John Wolfe was born on September 28, 1931 and worked for

twenty-five years as a truck assembly line worker at a General

Motors plant in Michigan.          His duties at the plant included light

metal finishing, medium metal welding, and heavy truck assembly of

doors and gates.          In January of 1982, Wolfe injured his back in an

automobile accident.           Since undergoing back surgery in April of

1982, Wolfe has been advised to limit his activities and to avoid

activities that could cause back strain.           He claims that he has not

engaged in any work activities since his accident.2
       Wolfe first applied for Social Security benefits in 1983.              He

claimed that he was disabled because of a heart condition, post

lumbar laminectomy and bone fusion, as well as vertebrae and nerve

damage.          The Secretary of the Department of Health and Human

Services         (the    "Secretary")   denied    Wolfe's    application     for

       2
      There is some evidence in the record that Wolfe has been
employed at times since his accident. See, e.g., R2-16-40. This
evidence is discussed infra.
disability insurance benefits.    Wolfe applied for reconsideration

of his application, but reconsideration was denied.         He then

requested an administrative hearing before an ALJ.        After the

administrative hearing, at which Wolfe was represented by counsel,3

the ALJ determined that Wolfe could not perform his past relevant

work, but that there were other jobs that Wolfe could perform, that

such jobs existed in significant numbers in the national economy,

and that, therefore, Wolfe was not "disabled" under the Social

Security Act.    The ALJ based his determination in part on the

testimony of vocational expert Forrest VanValin and in part on the

Medical Vocational Guidelines (the "grids"), found at 20 C.F.R. §

404, Subpart P, App. 2 (1995).   Wolfe did not appeal the ALJ's 1984

decision, which adjudicated the period from January 22, 1982, to

March 8, 1984.    The ALJ's determination thus became the final

decision of the Secretary.

     In 1985, Wolfe filed a second application for benefits, which

was denied by the Secretary.     He again requested reconsideration

and a hearing.   After the hearing in 1986, at which Wolfe waived

his right to counsel, a second ALJ denied Wolfe's claim and found

that Wolfe was not disabled during the adjudicated period, January

22, 1982, to June 12, 1986.      Because Wolfe did not appeal the

decision of the second ALJ, it became the final decision of the

Secretary.

     3
      Wolfe contends that the lawyer who appeared at the first
hearing was representing him for the purposes of his automobile
accident and knew nothing about Social Security law; he merely
accompanied Wolfe to the hearing as an observer. Because the
transcript from the hearing has not been provided, we must rely
on the decision of the ALJ, who states that Wolfe "was
represented by his attorney." R2-16-262.
     In 1991, Wolfe filed the current application for benefits

covering the period from June 13, 1986, through December 31, 1987.

At a hearing before a third ALJ, Wolfe, who was represented by

counsel,    alleged    that   there   were   errors    in   the   two   previous

decisions that warranted reopening those decisions.                The errors,

Wolfe contended, concerned Wolfe's alleged functional illiteracy.

The third ALJ reached the following conclusions concerning Wolfe's

educational level:

     In the prior decisions, findings were made that the claimant's
     education was at a "limited" seventh grade level (Exhibit B-1
     and Exhibit C-1). However, the representative notes that Mr.
     Wolfe has continually contended functional illiteracy and his
     psychological testing in the record from September 13, 1985
     reflects a significant reduction in reading and spelling below
     a third grade level and math at a fifth grade level.       The
     claimant's intelligence scores from verbal, performance and
     full-scale I.Q. were within normal range 88-97.

     The Administrative Law Judge does not find the claimant to be
     "illiterate" within the meaning of existing regulations (20
     CFR 404.1564). The claimant is able to perform rudimentary
     reading and spelling at a second grade level.              His
     intelligence testing in March 1985 states that his spelling
     and reading were below a third grade level and that the
     claimant had significant difficulties in reading.      This is
     interpreted by the Administrative Law Judge as having a
     reading and spelling level tested just below third grade level
     or in a second grade level of functioning.        This is not
     illiteracy.   This is functioning on a marginal education
     level.

R2-16-34-35.

     The    third     ALJ   also   determined   that    although    the   prior

decisions    had    erroneously    labeled   Wolfe     as   functioning    at   a

"limited" rather than a "marginal" educational level, the errors

were not reversible because there were jobs in the national economy

that Wolfe could perform at either educational level. Based on the

determination that Wolfe's previous work for General Motors was

semi-skilled, light work with transferable skills, that Wolfe was
physically able to perform light work, that he had a marginal

educational level, and that he was approaching advanced age, the

grids in the Code of Federal Regulations classified Wolfe as not

disabled.    Therefore, the ALJ concluded that he would not reopen

the prior decisions.       The ALJ went on to find that Wolfe was not

disabled during the period covered by his third application for

benefits.

     The Social Security Appeals Council denied review of the third

ALJ's decision and the district court, pursuant to 42 U.S.C. §

405(g), affirmed this denial.           We have jurisdiction over this

appeal under 28 U.S.C. § 1291.         We review the Secretary's factual

findings for substantial evidence and the Secretary's conclusions

of law de novo.       42 U.S.C. § 405(g) (Supp.1995);                 Barnes v.

Sullivan, 932 F.2d 1356, 1358 (11th Cir.1991) (per curiam); Martin

v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990).

                               II. ANALYSIS

A. Medical Vocational Guidelines

     We   first    address   Wolfe's    argument   that,   in   the     current

application, the ALJ was compelled to find him disabled pursuant to

grid rule 202.09 because he was approaching advanced age and

illiterate. Wolfe also contends that, as of September 28, 1991, he

was at advanced age and thus under grid rules 202.01 or 202.02, he

would be considered disabled.       The Secretary asserts that the ALJ

correctly used grid rule 202.12 to conclude that Wolfe is not

disabled.

     During the adjudicated period, Wolfe's age, as defined in the

grids,    ranged   from   closely   approaching    advanced     age    (54)   to
advanced age (56).        See 20 C.F.R. §§ 404.1563(c) & (d) (1995).            The

ALJ found that Wolfe functioned at a "marginal" educational level.

See 20 C.F.R. § 404.1564(b)(2) (1995).             Finally, the ALJ concluded

that Wolfe's prior relevant work at General Motors was semi-skilled

with transferable skills.               See 20 C.F.R. §§ 404.1568(b) & (d)

(1995).

           Wolfe claims that he is illiterate, rather than educated at

a   marginal       or   limited    level   as   described    in   the   three   ALJ

decisions.         The regulations define illiteracy as "the inability to

read or write."         20 C.F.R. § 404.1564(b)(1).         "We consider someone

illiterate if the person cannot read or write a simple message such

as instructions or inventory lists even though the person can sign

his or her name.        Generally, an illiterate person has had little or

no formal schooling."             Id.   The record reflects that Wolfe had

formal education through the seventh grade, but he testified that

he could neither read nor write, although he could count and make

change.         At the second hearing, a vocational expert testified that

Wolfe read at below the third grade level. The vocational expert's

report indicated that Wolfe could read a total of five words that

were       at   approximately     the   first   grade   level.      Wolfe's     own

vocational expert reported that "Wolfe is functionally illiterate

in regard to reading and spelling and is only able to do basic

adding, subtracting, and multiplying."              R2-16-539.4

       4
      The third ALJ rejected Wolfe's vocational expert's report
as not credible because (among other reasons unrelated to Wolfe's
educational level) the vocational expert "terms the claimant as
"functionally illiterate,' a term of art which is not
specifically correct in terms of the claimant's at least marginal
reading and spelling at the second grade level and math at the
fifth grade level as defined under existing regulations. (20 CFR
        Both the first and second ALJs concluded that Wolfe had a

limited education.   In 1992, the third ALJ found that the two prior

determinations that Wolfe functioned at the limited level were

erroneous. Instead, the ALJ concluded that Wolfe functioned at the

marginal level.

       Marginal education means ability in reasoning, arithmetic, and
       language skills which are needed to do simple, unskilled types
       of jobs. We generally consider that formal schooling at a 6th
       grade level or less is a marginal education.

20 C.F.R. § 404.1564(b)(2). We do not find substantial evidence to

support the third ALJ's conclusion that Wolfe possesses a marginal

education.     "Substantial   evidence   is   defined   as   more   than   a

scintilla, i.e., evidence that must do more than create a suspicion

of the existence of the fact to be established, and such relevant

evidence as a reasonable person would accept as adequate to support

the conclusion."      Foote v. Chater, 67 F.3d 1553, 1560 (11th

Cir.1995) (citation omitted).     We should not reweigh the evidence

nor should we substitute our discretion for that of the ALJ.           See

id.;    Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992).

       The only specific evidence of Wolfe's reading level came from

the vocational expert, who testified that Wolfe could read only

five first grade words.       This is not substantial evidence to

support the ALJ's conclusion that Wolfe has "a reading and spelling

level tested just below third grade level or in a second grade

level of functioning."     R2-16-35.     Furthermore, a determination

that Wolfe has a second grade educational level does little to shed
light on whether he can "read and write a simple message."



404.1563)."    R2-16-45.
       We find no cases in this circuit that address the issue of

educational level in a case such as this one.           We turn, therefore,

to other circuits that have faced this issue.           When examining the

difference    between   the   definitions    of    marginal   education   and

illiteracy in the regulations, the Seventh Circuit noted:

       These definitions are helpful, but they do not (and perhaps in
       the nature of things could not) establish clear rules over the
       whole range of potential disputes, such that once the facts
       are found the legal outcome can be obtained by a mechanical
       application of the rules. The regulations make clear that
       being able to sign your name doesn't make you literate and
       that you can be illiterate even if you have had a significant
       amount of formal schooling (it may not have taken). Beyond
       that, the picture dims.

Glenn v. Secretary of Health and Human Services, 814 F.2d 387, 390

(7th Cir.1987).

       In Skinner v. Secretary of Health and Human Services, 902 F.2d

447, 449 (6th Cir.1990), the claimant was given a Wide Range

Achievement Test ("WRAT"), the same test given to Wolfe by the

vocational expert. Skinner's test results placed his reading level

at below the third grade.       Id.   The vocational expert in Skinner

"testified that a person who reads and writes on the third grade

level   is   functionally     illiterate."        Id.   Nevertheless,     the

Secretary concluded that Skinner possessed a marginal education.

Id. at 448.   A magistrate judge found that the ALJ's determination

was wrong and that Skinner was illiterate, but the district court

rejected that magistrate judge's report and recommendation finding

that there was substantial evidence to support the ALJ's finding.

Id.     The Sixth Circuit reversed and held that the record was

"replete with evidence that Mr. Skinner is illiterate."              Id. at

450.
      In Dixon v. Heckler, 811 F.2d 506, 509-10 (10th Cir.1987), the

court reversed the district court's affirmation of the Secretary's

denial   of   benefits   finding   that   the   record   did   not   provide

substantial evidence of the claimant's literacy. The court defined

substantial evidence as "more than a "mere scintilla,' but less

than a preponderance, and "means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.'

"   Id. at 510 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91

S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).        The court then analyzed

the faults in the ALJ's reasoning as follows:

           The ALJ's apparent reliance on Dixon's "marginal
      education" to establish her literacy is misplaced. Although
      Dixon reported six or possibly seven years of formal
      schooling, the Secretary's regulation provides for use of
      numerical grade level to determine educational abilities only
      if there is no other evidence to contradict it. Especially
      when many years have passed since completion of formal
      education, as in Dixon's case, "the numerical grade level ...
      completed in school may not represent actual educational
      abilities." 20 C.F.R. § 416.964(b).

Id. at 510.

      We overturn the district court's finding that the ALJ's

determination that Wolfe is marginally educated is supported by

substantial evidence.     This does not mean that we find substantial

evidence to support a classification of Wolfe as illiterate.              We

simply find that this record is lacking in evidence to support any

classification of Wolfe's educational level. We find it necessary,

therefore, to remand this case for further findings of fact on

whether or not Wolfe is illiterate.

       In the alternative, Wolfe argues that there is insufficient

evidence to support the ALJ's determination that there are jobs in

the national economy that he can perform.          Wolfe claims the ALJ
erred in not making specific findings on whether his nonexertional

limitations, namely pain, weakness, and illiteracy, preclude a

finding that Wolfe is not disabled.            Wolfe also claims that the

third ALJ circumvented the grid rules, which, he argues, would

dictate a finding that he is disabled, by calling on a vocational

expert to identify jobs that Wolfe still could perform.5

         When the Secretary determines that a claimant is unable to

return to his past work, the burden is on the Secretary to show

that there is other work in the national economy that the claimant

can perform.          Francis v. Heckler, 749 F.2d 1562, 1566 (11th

Cir.1985).      The ALJ must take into account the claimant's age,

education, and previous work experience.          42 U.S.C. § 423(d)(2)(A)

(1991 & Supp.1995).        The ALJ should not rely exclusively on the

grids    when   the    claimant   has   a   nonexertional   impairment    that

significantly limits his basic work skills or the claimant cannot

perform a full range of employment at the appropriate level of

exertion. Francis, 749 F.2d at 1566. If nonexertional impairments

exist, the ALJ may use the grids as a framework to evaluate

vocational factors, but also must introduce independent evidence,

preferably      through   a   vocational     expert's   testimony,   of   the

existence of jobs in the national economy that the claimant can

perform. Welch v. Bowen, 854 F.2d 436, 439-40 (11th Cir.1988) (per

curiam).

         Wolfe's argument that his illiteracy was a nonexertional

impairment that the ALJ failed to consider is without merit because

     5
      A nonexertional impairment is one that significantly
impairs the claimant's ability to meet the demands of a job other
than the strength demands. 20 C.F.R. §§ 404.1569a(a) & (c).
illiteracy    is     not   a    nonexertional     impairment.        Examples    of

nonexertional mental impairments include "difficulty maintaining

attention    or    concentrating,"     and   "difficulty       understanding     or

remembering detailed instructions."             20 C.F.R. § 404.1569a(c)(ii)

& (iii).     Wolfe cites         Allen v. Sullivan, 880 F.2d 1200 (11th

Cir.1989), in support of his proposition that illiteracy is a

nonexertional impairment, but that case involved a claimant who was

borderline     mentally        retarded.     While    mental      retardation    is

considered a nonexertional impairment, the record clearly indicates

that Wolfe functions within the I.Q. range of a person of average

intelligence and is not mentally retarded. There is nothing in the

regulations or case law to indicate that illiteracy, in and of

itself, should be considered a nonexertional impairment.

     Wolfe also claims that the ALJ did not consider properly his

"pain and suffering" as a nonexertional impairment.                      There is

evidence in the record that Wolfe testified about his back and

chest pains at the 1992 hearing.             R2-16-110, 117, 119.         The ALJ

discredited       this   testimony,    however,      based   on   the   fact    that

evidence existed that Wolfe had lifted rocks and had an "ongoing

advocation [sic] of mobile home washing" during the adjudicated

period.     R2-16-40.      The ALJ also noted that Wolfe's "course of

treatment for his spinal, heart and thyroid conditions during the

period in issue were entirely conservative in nature."                  R2-16-41.

We find that there is substantial evidence to support the ALJ's

decision to discredit Wolfe's testimony regarding nonexertional

impairments.

      "This court has recognized that the grids may be used in lieu
of vocational testimony on specific jobs if none of the claimant's

nonexertional impairments are so severe as to prevent a full range

of employment at the designated level."                   Passopulos v. Sullivan,

976 F.2d 642, 648 (11th Cir.1992).                  The ALJ found no credible

evidence        of   nonexertional        limitations       suffered        by       Wolfe.

Therefore, the ALJ was under no obligation to use vocational expert

testimony       to   supplement     the   grids    to   determine    if     Wolfe      was

disabled.

B. Reopening of Prior Decisions

           Wolfe argues that the third ALJ effectively reopened the

prior decisions by reexamining the merits of those decisions.                           We

have jurisdiction to review the Secretary's refusal to reopen a

prior       decision     if   (1)     the    claimant       raises     a     colorable

constitutional claim, or (2) the record demonstrates that there has

been       an   actual    reexamination       of    the     merits     of        a    prior

administrative decision.            Jones v. Department of Health & Human

Servs., 941 F.2d 1529, 1533 (11th Cir.1991) (per curiam).6

           Wolfe claims that the prior ALJ decisions in fact were

reopened by the third ALJ when he revised Wolfe's educational level

and past relevant work description.                The Secretary contends that

the ALJ merely examined the prior decisions and specifically

declined        to   reopen   them.         Federal      courts   generally           lack

jurisdiction to review a decision by the Secretary to refrain from

reopening a prior claim for benefits.                   Califano v. Sanders, 430


       6
      The C.F.R. also allows a court to reopen a prior proceeding
to correct an error that appears on the face of the evidence that
was considered when the decision was made. 20 C.F.R. §
404.988(c)(8).
U.S. 99, 107-09, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977).    In

Passopulos, we outlined the circumstances that would permit our

review of a final decision of the Secretary:

          Generally, a final decision by the Secretary will be
     deemed reopened if it is "reconsidered on the merits to any
     extent and at any administrative level", Cherry v. Heckler,
     760 F.2d 1186, 1189 (11th Cir.1985); Hall v. Bowen, 840 F.2d
     777, 778 (11th Cir.1987). The ALJ, however, must be allowed
     some leeway to evaluate how newly presented evidence relates
     back to the prior application in order to determine whether to
     reopen the case pursuant to 20 C.F.R. §§ 404.988, 404.989.
     Hall, 840 F.2d at 778;          Cherry, 760 F.2d at 1189.
     Specifically, this court has held that an ALJ does not reopen
     a prior final decision when the ALJ evaluates evidence
     presented in support of the original application solely to
     make a reasoned determination of its res judicata effect on
     the second application.        Cherry, 760 F.2d at 1189.
     Alternatively, this court has suggested that the Secretary's
     final decision will be deemed reopened if the ALJ does not
     apply res judicata and bases an ultimate determination on a
     review of the record in the prior application. Cherry, 760
     F.2d at 1189 (citing with approval     Brown v. Heckler, 565
     F.Supp. 72, 74 (E.D.Wis.1983)).

Passopulos, 976 F.2d at 645-46 (11th Cir.1992).

      In the 1986 hearing, vocational expert Tremblay testified

that Wolfe's past relevant work as a metal finish repairer was

semi-skilled, heavy work with no transferable skills because his

skills were specific to the automotive industry.     R2-16-86.   In

1992, the third ALJ concluded that Tremblay's testimony was less

"credible" and less "appropriate" than VanValin's testimony at the

1984 hearing.   R2-16-35-37.   The third ALJ relied on VanValin's

testimony in finding that Wolfe's past job had transferable skills.

R2-16-44.   The ALJ's task is to examine the evidence and resolve

conflicting reports.   Powers v. Heckler, 738 F.2d 1151, 1152 (11th

Cir.1984) (per curiam).   We find that the third ALJ's examination

of the conflicting vocational expert testimony from the two prior

hearings was appropriate and did not constitute a reopening of the
prior decisions.      See Rohrich v. Bowen, 796 F.2d 1030, 1031 (8th

Cir.1986) (holding that an ALJ's review of claimant's prior medical

examination    from   a   prior    application    did    not     amount    to   a

reconsideration of the prior application on its merits).

         The third ALJ's determination that the other two ALJs had

mischaracterized Wolfe's educational level as "limited," when it

was actually "marginal," constituted a reopening.              By determining

that the first two ALJs had erred, the third ALJ went beyond

evaluating    evidence    for     the   purpose   of    making    a   reasoned

determination of its res judicata effect. The ALJ reconsidered the

merits of the prior decisions with regard to Wolfe's educational

level.     When we determine that an ALJ has reopened a prior

decision, we have jurisdiction to review the prior decision to the

extent that it has been reopened.         See Robertson v. Sullivan, 979

F.2d 623, 625 (8th Cir.1992) (per curiam).         On review, our task is

to determine if the Secretary's denial of disability is supported

by substantial evidence.        42 U.S.C. § 405(g) (Supp.1995).           We have

the "power to enter, upon the pleadings and transcript of the

record, a judgment affirming, modifying, or reversing the decision

of the Secretary, with or without remanding the cause for a

rehearing."     Id.    If we determine that the errors in a prior

decision would entitle the claimant to benefits that he has been

denied, then we should remand the case for a reexamination of the

prior closed application.         See Jelinek v. Heckler, 764 F.2d 507,

509-11 (8th Cir.1985).

     In this case, we are limited in our review of the prior

applications to the mischaracterization of Wolfe's educational
level as "limited" when the evidence indicates that the appropriate

description,     at    the   most,    should    have    been      "marginal."     As

discussed above, however, there is insufficient evidence in the

record to support the third ALJ's finding that Wolfe possessed a

marginal education.          Therefore, the fact that the third ALJ's

reconsideration of the merits of the prior applications constituted

a de facto reopening of those decisions requires that on remand the

Secretary must determine whether Wolfe's correct educational level,

once established by sufficient evidence, would entitle him to

benefits      during   the   periods      covered      by   the    1982    and   1986

decisions.7     Because we find that the third ALJ in fact reopened

the   prior    decisions,     we     do   not   address     Wolfe's       alternative

arguments that his due process rights were violated or that there

were errors on the faces of the prior decisions that require a

reopening.

                               III. CONCLUSION

      Wolfe appeals the district court's judgement affirming the

decision of the Secretary.            We conclude that the district court

erred in its determination that the third ALJ had not reopened the


      7
      The application of a "marginal" educational level to Wolfe
in the 1982 and 1986 decisions would not entitle Wolfe to
benefits during that period. Under the grids, a person
approaching advanced age, with a marginal educational level, and
with a prior work experience of semi-skilled, transferable or
non-transferable, is not disabled. 20 C.F.R. § 404, Subpart P,
App. 2, Rules 202.11 & 202.12. If Wolfe is determined on remand
to be illiterate, he will not fit squarely under the criteria in
the grids. In that case, the ALJ should give "full consideration
... to all of the relevant facts of the case in accordance with
the definitions and discussions of each factor in the appropriate
sections of the regulations," and vocational expert testimony
most likely will be necessary. 20 C.F.R. § 404, Subpart P, App.
2, sec. 200.00(a).
prior decision of the Secretary, and it is necessary to remand the

case to the district court with instructions to remand to the

Secretary so that further findings of fact can be made with regard

to whether or not Wolfe is illiterate.   The determination of the

district court that the portions of the decision of Secretary other

than the discussion of Wolfe's educational level are supported by

substantial evidence.   Accordingly, we AFFIRM in part, VACATE in

part, and REMAND.
