¶1I respectfully dissent from the majority’s opinion because, in my view, the issue of residual functional capacity (“RFC”) was a decided issue which should not have been disturbed during the administrative proceedings following remand of Hollins I.
¶2The majority holds that it was not error for the ALJ to completely re-evaluate appellant’s RFC on remand because “Hollins I did not constitute a decision on the merits regarding Hollins’s residual functional capacity.” Opinion, at 3. This conclusion, however, fails to recognize the significance of one of the “two narrow errors committed by the ALJ,” id., which triggered the remand, namely, the “mishandl[ing][of] the *537question of Hollins’s literacy^]” Opinion, at 2. As properly argued by appellant’s counsel, literacy is only an issue if the RFC is for light work. Under the Vocational Rules (the “grids”), literacy comes into play in only two situations: (1) where an individual has an RFC for sedentary work and is a “younger individual;” or (2) where, as here, an individual has an RFC for light work and is “closely approaching advanced age.”
¶3The initial decision of the ALJ issued in May 1996 found that Hollins, at age 51, was “closely approaching advanced age,” had only “limited” education and no past relevant work experience or transferable skills. The ALJ concluded that, if she were capable of performing the full range of light work (which he also concluded she was not), Hollins would be “not disabled” under Rule 202.10, Table No. 2, Appendix 1. Subpart P, Regulations No. 4. Admin. R. at 17, ¶¶ 8-12.
¶4The Hollins I court remanded, in part, so that the ALJ could make the literacy determination so critical to the selection of the appropriate vocational rule. Therefore, the remand assumed that the RFC for light work had been unchallenged. This, in fact, was a correct assumption. The Commissioner had not argued to the district court that the RFC finding of light work was incorrect. In addition, the Commissioner filed no objections to the magistrate judge’s recommendation in Hollins I, a recommendation which was then adopted by the district court in its remand order. Nor did the Commissioner appeal to this Court the district court’s final, appealable, sentence four remand order.
¶5*538In my view, the remand order of Hollins I rendered the unchallenged RFC determination final notwithstanding the fact that the order did not expressly verbalize that conclusion.
¶6*539In addition, although appellant has not raised this issue, I note that the ALJ’s second determination, made in November 1999, incorrectly found that Hollins was still only “closely approaching advanced age,” Admin. R. at 183, ¶ 11, when, in fact, she was already 55 years old, an age categorized for disability purposes as “advanced age.”
¶7That having been said, a finding of illiteracy, even coupled with an incorrect age of 54, would have entitled Hollins to a determination of “disabled” provided the RFC was for light work. Thus, it was very significant that the ALJ sua sponte decided to throw out the earlier RFC determination and then, harshly, exercised his discretion to apply a negative presumption to defeat a finding of disability.
¶8I respectfully dissent.
¶9. I disagree with the majority’s statement that the question of whether the ALJ was bound by his earlier determination "has not been appealed.” Opinion, at 2. I believe that is the entire question on appeal. Law of the case, claim preclusion and issue preclusion are merely the legal theories advanced by the appellant to support her assertion that the ALJ was bound.
¶10. Considering that Hollins had only non-exertional limitations, the ALJ ultimately concluded, based on the testimony of a vocational expert, that there was a significant number of jobs in the national economy which she could perform. Admin. R. at 18, ¶ 13.
¶11. "The fourth and sixth sentences of 42 U.S.C. § 405(g) delineate the district court’s authority to review a final decision of the [Commissioner] .... Section 405(g), thus, plainly authorizes two types of remand: (1) a post-judgment remand in conjunction with a decision affirming, modifying, or reversing the decision of the [Commissioner] (a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six remand).” Faucher v. Secretary of HHS, 17 F.3d 171, 173-74 (6th Cir.1994). See also, Melkonyan v. Sullivan, 501 U.S. 89, 99-100, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991) (there are only two possible kinds of remand under the statute). A sentence four remand order is immediately appealable to this Court. In the instant case, there was no appeal from the Hollins I ruling.
¶12. Although neither party has raised this issue, I believe it was error to give retroactive application of a new agency ruling, where that application renders incorrect an as-yet unchallenged finding that was correct under the rulings in effect at the time it was made.
¶13*538Retroactivity is typically "looked upon with disfavor.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 224, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). Two criteria must generally be satisfied in order to apply an administrative agency rule retroactively. First, the agency must express its clear intention that such rules be applied retroactively. See id. at 208, 109 S.Ct. 468. Second, Congress must have given the agency authority to promulgate retroactive rules. See id.
¶14In November 1998, in re-evaluating appellant’s functional restrictions, the ALJ pointed to SSR 96-7p and 96-8p, see, 61 Fed.Reg. 34474, 34483, which were promulgated on July 2, 1996, that is, after his original disability findings were made. SSR 96-7p, "Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements,” stated that it superseded SSR 95-5p, "Considering Allegations of Pain and Other Symptoms in Residual Functional Capacity and Individualized Functions Assessments and Explaining Conclusions Reached.” SSR 95-5p had superseded SSR 88-13, "Evaluation of Pain and Other Symptoms.” Because SSR 95-5p declared its purpose to be the restatement and clarification of "longstanding policies of the Social Security Administration,” at least one court has applied SSR 95-5p retroactively when it reviewed an ALJ determination that was made before the ruling was promulgated. SSR 96-7p, which now supersedes 95-5p, makes no similar mention of “longstanding policy” or retroactivity. Compare, SSR 00-3p (May 15, 2000) which specifically discusses how to handle already-allowed and pending claims in light of its deletion of a listing relating to obesity. SSR 96-7p does state that its purpose is to clarify, but that clarification relates to the need for credibility assessments when considering statements about pain and other symptoms. SSR 96-8p, "Assessing Residual Functional Capacity in Initial Claims,” similarly makes no mention of longstanding policy or retroactivity.
¶15Since no party raised this issue, I will not address it further. However, it seems likely that, in view of the fact that the Appeals Council refused review of the original determination on March 12, 1997, nine months after the promulgation of the new rulings, it did not believe the rulings needed to be retroactively applied to correct any error of the ALJ. Therefore, it seems unfair to allow the ALJ to suddenly decide to upset a settled RFC determination by applying the new rulings which even the Appeals Council had never applied.
¶16. Certainly the district court was free to assume that the agency which deals with these matters on a daily basis would, even without a direct reference, identify the nuance and understand the significance of a remand order directing that a determination be made as to Hollins's literacy so that a proper determination could be made with respect to which of the vocational rules to apply.
¶17. Not only did he exceed the scope of the remand, he did so with an absurd result. The ALJ ordered Hollins to undergo a new medical examination, which he was free to do in order to ascertain any prospective changes in her condition since he had last ruled. On the advice of counsel who believed the ALJ was acting beyond the scope of the remand order, Hollins did not appear for the examination. (I note that there is nothing in the administrative record which would suggest that counsel could have guessed that the ALJ asked for a new medical consultation because he was contemplating application of new agency rulings which would change the RFC determination.) The ALJ then exercised his discretion under 20 C.F.R. § 404.1518 to apply a presumption that Hollins was not disabled which, when coupled with his application of completely new standards set forth in the new rulings, resulted in the ludicrous conclusion that Hollins was capable of all exertional levels of work, including heavy work. In my view, the ALJ abused his discretion by applying this harsh presumption under circumstances where, as here, Hollins did not appear on the advice of counsel. Clearly, she should not be punished for taking her counsel's advice, misguided as it may, arguably, have been.
¶18. I have no quarrel with the majority's statement that an ALJ is not precluded "from *539acting in ways that go beyond, but are not inconsistent with, the district court's opinion.” Opinion, at 4-5. However, I believe the ALJ did act in a way that was inconsistent with the district court's opinion, given the significance of the remand order which specifically required an examination of Hollins's literacy, an issue which had great significant (for "grid” purposes) given her age and the RFC for light work.
¶19. Hollins was only 54 years old in July 1999 when the ALJ conducted his hearing following the remand. However, her birthday was on August 28, 1999. Therefore, she was 55 years old as of the end of her prescribed period, i.e., August 31, 1999, and by the time the ALJ rendered his second determination in November 1999.