Linda HOLLINS, Plaintiff-Appellant, v. Larry G. MASSANARI, Defendant-Appellee, 49 F. App'x 533

KENNEDY, Circuit Judge. Plaintiff-appellant Linda Hollins seeks review under 42 U.S.C. § 405(

g) of the Commissioner of Social Security’s decision denying her widow’s insurance benefits. In the first administrative adjudication of this case, the administrative law judge determined that Hollins was not disabled, and had a residual functional capacity for only limited light work. Hollins appealed the finding of no disability, arguing that there was not substantial evidence to support the ALJ’s decision. Specifically, she argued that the ALJ’s determinations were wrong because: (1) her combined physical and mental impairments were equivalent to Listing 12.05C; (2) she is illiterate.

The district court agreed that the ALJ had mishandled the equivalency issue, but was unwilling to rule that Hollins’s impairments were in fact equivalent to Listing 12.05C. Instead, the court remanded the case to the ALJ for reconsideration of the equivalency issue. The district court also agreed that the ALJ had mishandled the question of Hollins’s literacy, and remanded for consideration of that issue as well. Hollins v. Apfel, C-2-97-352 (S.D.Ohio 1997) (Hollins I). Upon remand, the ALJ did not merely reconsider the specific issues addressed by the district court’s opinion.

Instead, the ALJ conducted an entirely new hearing on the question of Hollins’s disability. The ALJ determined that he had erred in his previous evaluation of Hollins’s physical impairments, and conducted a new examination of the evidence on that issue. Based on this new inquiry, the ALJ concluded that Hollins did not have any severe physical impairments and therefore once again found no disability. Hollins once again appealed to the district court on the grounds that the ALJ was bound by his earlier determination that Hollins did have severe physical impairments.

The district court disagreed, noting that under 20 C.F.R. § 404.955, the prior decision of the ALJ was no longer binding because Hollins had sought judicial review. Hollins v. Apfel, 160 F.Supp.2d 884 (S.D.Ohio 2001) (Hollins II). That issue has not been appealed. Hollins also argued that the district court’s initial decision in Hollins I established the law of the case as to the issue of her physical capacity, or, in the alternative, that Hollins I had claim preclusion and/or issue preclusion effect. Again, the district court disagreed, and it is on these grounds that Hollins appeals. Id.

We affirm the district court’s decision. In order for Hollins to succeed under any legal theory, the district court must have issued a final decision on the merits regarding her physical impairments and residual functional capacity. See Hammer v. Immigration and Naturalization Serv., 195 F.3d 836, 840 (6th Cir.1999) (noting that issue preclusion only applies if “the issue was actually litigated and decided in the prior action” and “resolution of the issue was necessary and essential to a judgment on the merits in the prior litigation.”), cert. denied, 528 U.S. 1191, 120 S.Ct. 1247, 146 L.Ed.2d 105 (2000); Kane v.

Magna Mixer Co., 71 F.3d 555, 560 (6th Cir.1995) (noting that claim preclusion only applies if there has been “a final decision on the merits”), cert. denied, 517 U.S. 1220, 116 S.Ct. 1848, 134 L.Ed.2d 949 (1996); Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (noting that “[t]he doctrine of law of the case only comes into play with respect to issues previously determined.”). Hollins I did not constitute a decision on the merits regarding Hollins’s residual functional capacity.

The district court’s opinion addressed only the two narrow errors committed by the ALJ in the initial hearing. The merit of the ALJ’s determination regarding Hollins’s physical capacity was assumed for the purposes of evaluating Hollins’s claims regarding the ALJ’s treatment of her combined mental and physical capacity. In other words, the district court held that given the ALJ’s findings regarding physical capacity, the ALJ should have considered the combined effect of her mental and physical impairments and compared that full picture to Listing 12.05C.

The fact that the ALJ made certain factual findings is essential to the district court’s holding, but the truth of those findings is not. Hollins also argues that the ALJ did not have the authority to exceed the scope of the remand order in Hollins I by opening an entirely new hearing. Under the “mandate rule,” administrative agencies generally are obligated to follow the mandates set forth in a federal court decision. Youghiogheny & Ohio Coal Co. v. Milliken, 200 F.3d 942 (6th Cir.1999).

Hollins does not dispute that the ALJ followed the district court’s directive to reconsider Hollins’s illiteracy and mental impairments. Rather, Hollins argues that the ALJ was limited to deciding only the specific issues indicated in the district court’s remand order; namely, whether her mental impairments equal Listing 12.05C, and whether she was illiterate. In some Social Security cases, district courts will include detailed instructions concerning the scope of the remand and the issues to be addressed.

In such cases, “[deviation from the court’s remand order in subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review.” Sullivan v. Hudson, 490 U.S. 877, 886, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). See also Mefford v. Gardner, 383 F.2d 748, 758 (6th Cir.1967) (noting “the general rule that, on the remand of a case after appeal, it is the duty of the lower court, or the agency from which appeal is taken, to comply with the mandate of the court and to obey the directions therein without variation and without departing from such directions.”).

These cases stand for the proposition that the administrative law judge may not do anything expressly or impliedly in contradiction to the district court’s remand order. These cases do not preclude the ALJ from acting in ways that go beyond, but are not inconsistent with, the district court’s opinion. Reconsideration of Hollins’s physical impairments was not inconsistent with any express or implied order of the district court. It is true that the district court’s remand order in this case did not direct the ALJ to reconsider the evidence of Hollins’s physical capacity.

However, the ALJ did not need a mandate from a federal court to consider this issue. His power to do so derives from the legislative grant of authority contained in the Social Security Act. The Social Security Administration has promulgated regulations stating that, upon remand by a federal court, “[a]ny issues relating to your claim may be considered by the administrative law judge whether or not they were raised in the administrative proceedings leading to the final decision in your case.” 20 C.F.R. § 404.983.

The ALJ therefore did not act outside his authority in ordering a de novo review of Hollins’s physical capacity. For the forgoing reasons, we affirm the opinion of the district court. DAVID D. DOWD, Jr., District Judge, dissenting. . 20 C.F.R. § 404.955 provides in pertinent part: "The decision of the administrative law judge is binding on all parties to the hearing unless ... (

b) you or another party requests a review of the decision by the Appeals Council within the stated time period, the Appeals Council denies your request for review, and you seek judicial review of your case by filing an action in Federal district court.” . The dissent’s argument that this is "the entire question on appeal" conflates the preclusive power of the AU's determination with the preclusive power of the district court’s opinion in Hollins I.

The former question, which Hollins does not raise before this court, is conclusively answered by 20 C.F.R. § 404.955, which clearly makes the ALJ’s determination not final and therefore not binding under any of Hollins’s legal theories. The latter question is the subject of this appeal. . Because the ALJ revisited his prior findings sua sponte, the issue before this Court is whether this ALJ possessed the authority to do so, and not whether the Commissioner waived his right to object or appeal the ALJ’s original findings regarding Hollins’s residual functional capacity.