Monday, October 28, 2013

socialNsecurity Chap 8



The Alleged Onset Date, The Most Important Day in The Claimant’s Life.
The date that you claim your disability began is the most important date in your life. It is more important than your birthday, or the date of your wedding anniversary. This date will mean more to you  than the birthdates of any of your children. It is the day that determines when you became eligible to receive Social Security benefits.
The alleged onset date (AOD) will become the determined date of onset of disabilities (DOD) if you can convince the ALJ that you actually stopped working that day because you could not perform any substantial gainful activity (SGA). The further in the past you can fix that date, the better off you will be financially. This is the only way to receive retroactive benefits.
Retroactive benefits are past due benefits. You should have received them earlier but you did not for many possible reasons. All of these reasons added to the length of time it took for you to get a final decision from the SSA. The longer the processing time for your claim, the more money you will receive for past due benefits when your claim is granted.
The AOD is not determined by whether you are getting paid from your past job. In many cases you might still be receiving a salary from your employer after you stopped working. The AOD is determined by the date your disability actually began, not the date your salary stopped.
If you are one of those people whose identity is strongly influenced by what they do for a living, you might try to return to SGA after you became disabled. If you try to go back to work and simply cannot do the job, this might be considered an unsuccessful work attempt. This work attempt will not necessarily change your original AOD.  If you attempt to return to work, but you are forced to stop again before you have worked for three months, you may still be able to claim the original AOD.
Changing the Alleged Onset Date
If an ALJ wants to amend your AOD, it would be prudent to check to see what is your "date last insured"(DLI).  The DLI is that last date that you are insured for Title II disability benefits.  If the onset date is changed to some date after the DLI, then you would not be eligible for SSDI benefits. SSDI insurance requires work for 5 out of the last 10 years prior to onset. 
If the ALJ suggests that you amend the AOD to a date after the DLI, it would be prudent to refuse.

In the following case, William Ferriell allowed the ALJ to amend his AOD and the ALJ was wrong. This was a disastrous mistake for the claimant. The Appeals Council reviewed the case, on its own motion, and reversed the ALJ. After an initial grant of benefits, the claimant lost his benefits. If he had stood his ground and argued for his original AOD, chances are that he would have received a large payment for past due benefits and he would be collecting benefits today.
No. 09-5597.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: July 20, 2010.
Pursuant to Sixth Circuit Rule 206
ON BRIEF: Julie Atkins, ATKINS LAW OFFICE, Harlan, Kentucky, for Appellant.
J. Patrick Powers, Mary Ann Sloan, Dennis R. Williams, Douglas G. Wilson, Brian Seinberg, SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE GENERAL COUNSEL, Atlanta, Georgia, James H. Barr, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.
Before: KENNEDY, ROGERS, and KETHLEDGE, Circuit Judges.
KENNEDY, Circuit Judge.
In this social security case, Plaintiff seeks review of the Appeals Council's decision that he is not entitled to receive disability benefits. Because we find that the decision in Plaintiff's case was entered pursuant to the Appeals Council's authority to reopen and revise the decisions of an administrative law judge, and that the procedures used did not violate Plaintiff's right to due process, we AFFIRM the district court's ruling upholding the Appeals Council's decision.
On May 17, 2005, William Ferriell submitted an application for social security disability benefits, claiming that ailments in his back and lungs had rendered him disabled since August 1, 1998. Ferriell had worked full-time as an auto mechanic from 1964 through 1998, but had not held a full-time job since 1998. His application was initially denied on August 10, 2005, then denied on reconsideration on November 21, 2005.
Ferriell requested and was granted a hearing before an administrative law judge ("ALJ"). ALJ Patrick Kimberlin convened a hearing in Ferriell's case on January 17, 2007, but decided to reschedule it once Ferriell's representative presented him with amended tax returns for 1999 and 2000 that he asserted would push back Ferriell's date last insured (DLI). A full hearing was held on February 26, 2007, during which the ALJ indicated he had "recalculated" Ferriell's date last insured as December 31, 2005, rather than the December 31, 2003 date established during the initial determination. After this pronouncement and the conclusion of Ferriell's testimony, Ferriell's representative stated that Ferriell wished to amend his onset date to May 17, 2005, the date of his application. The ALJ accepted the amendment, and on April 19, 2007 he issued a decision fully favorable to Ferriell, concluding that Ferriell was entitled to disability benefits beginning on May 17, 2005.
On June 27, 2007, the Assistant Regional Commissioner for Processing Center Operations from the Southeastern Program Service Center referred Ferriell's case to the Office of Disability Adjudication and Review ("ODAR"). The referral stated that Ferriell's earning records indicated he did not have enough periods of covered social security income to qualify for benefits on May 17, 2005, though he would have enough covered income to qualify for benefits based on an August 1, 1998 onset date. The Assistant Regional Commissioner recommended that the Appeals Council initiate own-motion review or reopen and revise Ferriell's case to investigate the issue.
On September 14, 2007, the Appeals Council notified Ferriell via letter that it was reopening and revising the hearing decision in his case. The letter explained that the Appeals Council had authority to revise Ferriell's decision because less than four years had passed from the initial determination and "good cause" to reopen existed since the evidence considered by the ALJ clearly showed that there was an error. The letter went on to state that the Appeals Council planned to enter a decision that Ferriell was not entitled to disability benefits as of May 17, 2005 because a "transpositional error" had caused the ALJ to record his date last insured as December 31, 2005 instead of December 31, 2003. The letter concluded by indicating that Ferriell had thirty days to present a statement of the law and facts of his case, new evidence, and/or a request to appear before the Appeals Council prior to the entry of its final decision in his case. Ferriell's representative responded to the Appeals Council's notice by sending a letter to the Appeals Council arguing that Ferriell's December 31, 2005 date last insured was justified by amended tax returns for the years 1999 and 2000, which Ferriell had submitted to the IRS in 2006 in order to report additional self-employment income. Nevertheless, on November 20, 2007, the Appeals Council issued a decision unfavorable to Ferriell. It rejected Ferriell's argument for an extension of his date last insured, citing section 205(c)(4)(C) of the Social Security Act, 42 U.S.C. § 405(c)(4)(C), as precluding the retroactive crediting of self-employment income after a certain time period had elapsed. Since this cut-off date was April 15, 2003 for self-employment income from 1999, and April 15, 2004 for 2000 income, the Appeals Council concluded that Ferriell had not submitted his amended returns in time to be given credit for the self-employment earnings recorded therein. It found that Ferriell's date last insured was December 31, 2003 and, as there was no evidence of disability prior to 2005, that he was not entitled to disability benefits.
Ferriell sought judicial review of the Appeals Council's decision in the United States District Court for the Western District of Kentucky, arguing that the Appeals Council was time-barred from considering his case and that the Appeals Council's decision denied him due process. The district court affirmed the Appeals Council, and Ferriell timely appealed to this court.
Ferriell's brief does not contest the substance of the Commissioner's ruling in his case, but does object to the procedures through which he was determined ineligible for disability benefits. Specifically, he asserts that Social Security Administration ("SSA") regulations make the Appeals Council's action in his case untimely, and that he was denied due process in the determination of the onset date of his disability. The district court denied both of these claims, but we review a district court's conclusions in a social security case de novo. Valley v. Comm'r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). We consider each issue in turn.
I. Timeliness of Appeals Council's Action
Ferriell first argues that his case was not properly before the Appeals Council when it overturned the ALJ's ruling in his favor, which fact deprived it of jurisdiction to reopen and revise the ALJ's decision. To evaluate his contention as it applies to this case, we must examine the SSA procedures that allow the Appeals Council to alter an ALJ's disability decision on its own motion. Under regulations providing for the direct review of ALJ decisions, the Appeals Council may initiate review of a "hearing decision or . . . dismissal of a hearing request," 20 C.F.R.§ 404.967, "[a]nytime within 60 days after the date of a decision or dismissal," id. § 404.969(a). "The Appeals Council's decision to review a case is established by its issuance of the notice of review," id. § 404.969(d), which is a notice mailed to all parties "stating the reasons for the review and the issues to be considered," id. § 404.973. The Appeals Council will review a case if: "(1) [t]here appears to be an abuse of discretion by the [ALJ]; (2) [t]here is an error of law; (3) [t]he action, findings or conclusions of the [ALJ] are not supported by substantial evidence; or (4) [t]here is a broad policy or procedural issue that may affect the general public interest." Id. § 404.970(a).
In addition to the direct review procedures, SSA regulations allow the SSA to reopen and revise some decisions that are otherwise final and binding on its own initiative. Id. § 404.987. A decision may be reopened "[w]ithin four years of the date of the notice of the initial determination" on a finding of "good cause." Id. § 404.988(b).[ 2 ] "Good cause" to reopen a decision exists if: "(1) [n]ew and material evidence is furnished; (2) [a] clerical error in the computation or recomputation of benefits was made; or (3) [t]he evidence that was considered in making the determination or decision clearly shows on its face that an error was made." Id. § 404.989(a).
The Appeals Council revised Ferriell's case more than sixty days after the ALJ's decision, so its action must be authorized by the reopening procedures in order to be lawful under SSA regulations. Ferriell asserts that the Appeals Council cannot reopen an ALJ's decision unless the case is properly before it, that is, unless it had previously asserted its jurisdiction over the case under the review procedures. In other words, he contends that the Appeals Council's failure to initiate review of his case within the sixty-day time limit acts as a jurisdictional bar to its authority to reopen it. The Commissioner advances an alternative interpretation: The Appeals Council can reopen an ALJ's decision pursuant to the reopening procedures regardless of whether it had undertaken review proceedings within the sixty-day period. Under this view, direct review of an ALJ's decision is a completely separate process from the reopening of an ALJ's decision, and the Appeals Council has authority to do either as long as it acts in accordance with the regulations governing its chosen procedure.
The correct interpretation of the Appeals Council's authority to reopen ALJ decisions after more than sixty days has not been definitively determined in this circuit. In Fox v. Bowen, 835 F.2d 1159 (6th Cir. 1987), this court upheld the Appeals Council's authority to reopen a disability decision more than one year after the ALJ's initial decision, based on a showing of "good cause" under 20 C.F.R. § 404.988(b). This holding supports the Commissioner's interpretation of the direct review and reopening procedures, but it does not foreclose Ferriell's argument. First, the court in Fox did not consider nor decide the specific issue in this case, namely, whether the direct review procedures create a jurisdictional limitation on the Appeals Council's reopening authority. Therefore, a holding in Ferriell's favor on this issue would not be precluded by our published decision in Fox. See 6th Cir. R. 206(c) ("Reported panel opinions are binding on subsequent panels."). Second, since the decision in Fox, the SSA has amended 20 C.F.R. § 404.969 governing own-motion review by the Appeals Council in a manner that speaks to the Appeals Council's power under the reopening provisions. No panel of this court has yet to construe the new regulation's impact on the reopening procedures. For these reasons, we proceed to examine the direct review and the reopening regulations in order to determine if there is reason to deviate from the result in Fox.
Before beginning our analysis, we note that we do not start with a blank slate. An agency's interpretation of its regulations must be considered, even on pure legal questions such as this one. Davis v. Sec'y of Health & Human Servs., 867 F.2d 336, 338 (6th Cir. 1989); see also MCI Telecomms. Corp. v. Ohio Bell Tel. Co., 376 F.3d 539 (6th Cir. 2004). The SSA's interpretation of the regulations at issue is entitled to substantial deference; it will be upheld unless plainly erroneous or inconsistent with the regulations. Auer v. Robbins, 519 U.S. 452, 461 (1997); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 549-50 (6th Cir. 2004).
The basis for Ferriell's argument is a potential ambiguity in the reopening regulations, which do not explicitly specify which component level of the SSA possesses the authority to reopen and revise a final decision or determination. The reopening provisions use the general terms "we," "us," and "our" to describe who has authority to reopen a decision. See, e.g., 20 C.F.R. § 404.987 ("[A] determination or decision made in your case which is otherwise final and binding may be reopened and revised by us. . . . We may reopen a final determination or decision on our own initiative. . . ."); id. § 404.989 ("We will find that there is good cause to reopen a determination or decision if. . . ."). Since "we," "us," and "our" refer simply to the SSA, id. § 404.901, the reopening regulations seem neither to provide guidance nor to place limits on which level of the SSA may invoke the reopening procedures. In fact, this led the Eleventh Circuit in Butterworth v. Bowen, 796 F.2d 1379 (11th Cir. 1986), to adopt the interpretation of the reopening procedures advanced by Ferriell. The court upheld the petitioner's argument that:
[A] reading of the regulations in context indicates that a final ruling—whether a determination or a decision—may be reopened and revised only by a component level which has jurisdiction over the case. . . . First, appropriate conditions as listed in section 404.988 must exist, and second, the case must be properly before that particular component level before it may exercise reopening authority. [T]here are several methods by which a decision may be properly before the Appeals Council[,] . . . [for example it] may take the case on its own motion review. . . .
Id. at 1386.
However, the SSA has on several occasions advanced an interpretation of the reopening provisions that rejects Ferriell's reading in favor of the Commissioner's. After the decision in Butterworth, the SSA promulgated an Acquiescence Ruling disapproving of the decision as "contrary to SSA policy" and specifying that it applies "only to decisions at the Appeals Council level and only to cases in which the claimant resides in Alabama, Florida, or Georgia at the time of the Appeals Council's review." Social Security Acquiescence Ruling 87-2(11) (May 1, 1987), available at, rescinded, Rescission of Social Security Acquiescence Ruling 87-2(11), 63 Fed. Reg. 36,726 (July 7, 1998). It described its interpretation of the reopening provisions as follows:
20 C.F.R. [§§] 404.987-404.995 . . . use the word "we" to signify SSA components, including the Appeals Council, and thus vest the authority to reopen and revise in the Appeals Council as well as in other SSA components. Therefore, under SSA policy, the Appeals Council may reopen and revise any ALJ or Appeals Council decision if the procedures and conditions set forth in 20 C.F.R. [§§] 404.987 and 404.988 . . . are met. Such actions are subject only to the time limits found in those provisions and not the time limits of any other regulations.
Id. (emphasis added).
More importantly, in 1998 the SSA amended 20 C.F.R. § 404.969 governing the Appeals Council's own-motion review procedures, and included language with which it sought to codify its interpretation of the Appeals Council's authority under the reopening provisions. Section 404.969 now contains four subsections, the last of which references 20 C.F.R. §§ 404.987 and 404.988:
(d) Appeals Council's action. If the Appeals Council decides to review a decision or dismissal on its own motion, it will mail a notice of review to all the parties as provided in § 404.973. . . . The Appeals Council's decision to review a case is established by its issuance of the notice of review. If it is unable to decide within the applicable 60-day period whether to review a decision or dismissal, the Appeals Council may consider the case to determine if the decision or dismissal should be reopened pursuant to §§ 404.987 and 404.988.
§ 404.969(d). The SSA's statement accompanying the final rule amending § 404.969 sheds light on the purpose of the regulation's reference of the reopening provisions. Its summary of § 404.969(d) reads in part:
Section[] 404.969(d) . . . also state[s] our policy that when the Appeals Council is unable to decide whether to review a case on its own motion within the 60-day period in which it may do so, it may consider whether the decision should be reopened under . . . [§] 404.987 . . ., which authorize[s] the Council to reopen a decision that has become administratively final on its own initiative or at the request of a party to the decision, if a condition for reopening stated in [§] 404.988 . . . is present. Inclusion of this statement in the regulations clarifies our long-standing policy that the Appeals Council may also reopen final decisions in accordance with §§ 404.987 [and] 404.988 . . . after the 60 days for initiating review under [§] 404.969 . . . have expired.
Administrative Review Process; Identification and Referral of Cases for Quality Review Under the Appeals Council's Authority to Review Cases on Its Own Motion, 63 Fed. Reg. 36,560, 36,563 (July 7, 1998) (emphasis added) (citing AR 87-2(11)). Even more tellingly, the SSA rescinded Acquiescence Ruling 87-2(11) concurrently with the promulgation of the revised § 404.969. It discussed this decision in its response to a public comment requesting clarification of the changes to § 404.969(d) relative to the Butterworth decision:
[W]e are rescinding [AR 87-2(11)] as obsolete based on the language that we are including in [§] 404.969(d) . . . to clearly state our policy that the Appeals Council has authority to reopen, in accordance with the requirements of §§ 404.987 [and] 404.988 . . ., ALJ decisions that come before it for possible own-motion review. This language establishes that a case that has come before the Appeals Council under the provisions of [§] 404.969, and for which the 60-day period for taking own-motion review has lapsed, is properly before the Council for the purpose of considering reopening under the existing regulations on reopening. This language also establishes that it is our intent that the Appeals Council's authority to reopen an ALJ's decision in accordance with the provisions of those regulations, which establish conditions for reopening that differ from the conditions for own-motion review, should not be subject to the 60-day time limit in [§] 404.969. . . .
Id. at 36,564 (emphasis added).[ 3 ] The notice rescinding Acquiescence Ruling 87-2(11) contains similar language:
Under the final rules, the Appeals Council's authority to reopen and revise ALJ decisions is not limited by the 60-day period provided in paragraph[] 404.969(a). . . .
Because the final rules address the Butterworth court's concerns and explain that the Appeals Council's authority to reopen and revise ALJ decisions is not subject to the 60-day period provided in paragraph[] 404.969(a) . . ., we are rescinding Acquiescence Ruling 87-2(11). The final rules and this rescission restore uniformity to our nationwide system of rules in accordance with our commitment to the goal of administering our programs through uniform national standards. . . .
Rescission of Social Security Acquiescence Ruling 87-2(11), 63 Fed. Reg. at 36,727 (emphasis added).
The plain language of these statements indicates that, under the SSA's interpretation of the direct review and reopening procedures, the Appeals Council may reopen an ALJ's decision more than sixty days after the decision is issued, as long as it complies with the requirements of §§ 404.987 and 404.988.[ 4 ] We see no reason not to defer to this interpretation of §§ 404.969, 404.987, and 404.988, as it is consistent with the text of those regulations. Though the reopening provisions are somewhat vague, as noted above, § 404.969(d) as amended explicitly states that the Appeals Council may consider reopening a case after sixty days. Furthermore, § 404.969(d) does not seem to contain any limits on which ALJ decisions might be reopened by the Appeals Council beyond the general rule that "hearing decision[s] or . . . dismissal[s] of hearing request[s]," § 404.967, are "subject to review under [§ 404.969]," § 404.969(a); the regulation refers to "a" decision or dismissal as being eligible for reopening, and the qualifier "[i]f [the Appeals Council] is unable to decide within the applicable 60-day period whether to review a decision or dismissal" contemplates the reopening of decisions that were not subject to direct review.[ 5 ]
Ferriell disputes this reading, arguing that, instead of establishing that the Appeals Council need not assert jurisdiction over a case in order to later reopen an ALJ's decision, § 404.969(d) preserves the Butterworth limitations and merely specifies that one way for the Appeals Council to assert its jurisdiction is to issue a notice of review within the sixty-day time limit for direct review. We can discern no basis for this argument in the text of § 404.969(d). According to that section, "[t]he Appeals Council's decision to review a case is established by its issuance of the notice of review." § 404.969(d). The next sentence grants the Appeals Council authority to reopen a case "[i]f it is unable to decide within the applicable 60-day period whether to review a decision or dismissal." Id. Thus, under the terms of § 404.969(d), in those cases that the Appeals Council could not decide to review within sixty days of the ALJ's decision—cases that are explicitly eligible for reopening by the Appeals Council— it would not issue a notice of review. This directly contradicts Ferriell's argument. Furthermore, in cases in which the Appeals Council has done nothing but issue a notice of review before the expiration of the sixty-day period it could simply revise the ALJ's decision under direct review, rendering its express reopening authority superfluous. Finally, even if Ferriell's reading of the regulation were tenable, his interpretation conflicts with the SSA's, which we have already determined is also supported by the text of § 404.969(d).
Thus, since the SSA's interpretation is consistent with our reading of the text of the applicable regulations and not clearly erroneous, we defer to it. See Auer, 519 U.S. at 461. The Appeals Council may reopen and revise an ALJ's decision after the sixty-day window for direct review has expired, as long as the requirements of §§ 404.987 and 404.988 are met. We note this holding is consistent with this court's decision in Fox v. Bowen, as well as the holdings of the few district courts to consider this issue. See Scheuering ex rel. Scheuering v. Barnhart, No. Civ. 02-418—M, 2003 WL 21731300, at *3—*4 (D.N.H. July 25, 2003) (unpublished decision); Greaux v. Apfel, 137 F. Supp. 2d 1308, 1315 (M.D. Fla. 2001) (acknowledging that Appeals Council might reopen a case more than sixty days after an ALJ's decision on a showing that it was unable to decide whether to initiate direct review within sixty days). Ferriell does not contend that the Appeals Council's action in his case violated the parameters of § 404.988(b): The case was reopened within four years of the initial determination, and the erroneous date last insured relied on by the ALJ constituted good cause for reopening as "evidence [that] clearly shows on its face that an error was made." 20 C.F.R. § 404.989(a)(3). Therefore, the Appeals Council was justified in reopening and revising Ferriell's case, and its decision should not be vacated as untimely.
II. Due Process
Ferriell next asserts that the proceedings before the Appeals Council denied him due process. In Flatford v. Chater, 93 F.3d 1296, 1304-05 (6th Cir. 1996), this court assumed that an applicant for social security disability benefits has a property interest in those benefits protected by the Fifth Amendment. See also Richardson v. Perales, 402 U.S. 389, 401-02 (1971) (assuming procedural due process protections apply to a social security disability claim hearing). At a minimum, the Due Process Clause requires that an individual is afforded notice and an opportunity to be heard before the deprivation of a protected interest through adjudication. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). In the context of a social security hearing, due process requires that the proceedings be "full and fair." Flatford, 93 F.3d at 1305 (quoting Perales, 402 U.S. at 401-02). To determine whether such a hearing passes constitutional muster, a court must look to the three factors identified by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976):
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
See also Flatford, 93 F.3d at 1306.
Ferriell claims that the reopening of his case violated due process guarantees because he did not receive an adjudication as to whether he could establish the onset of his disability before the December 31, 2003 date last insured imposed by the Appeals Council. Though in his initial application Ferriell alleged an onset date of August 1, 1998, he amended that date to May 17, 2005 during his hearing before the ALJ, a change which he claims he made in reliance on the ALJ's erroneous decision that his date last insured was December 31, 2005. Now that the Appeals Council has revised his date last insured to the earlier December 31, 2003 date, Ferriell argues that the Appeals Council should have remanded his case to an ALJ for reconsideration of his onset date.
We recognize that, under the first Eldridge factor, the private interest at stake here is potentially great. We also note that, if the reopening procedures did not afford Ferriell the opportunity to have his argument considered by some component of the SSA, this would raise serious due process concerns. However, the Appeals Council did give Ferriell the opportunity to raise the issue concerning his onset date. Therefore, the importance of Ferriell's interest in disability benefits is outweighed by the low risk of an erroneous deprivation posed by the reopening procedures and the large administrative burden associated with a procedure requiring remand in cases such as Ferriell's.
Examination of the SSA's reopening provisions and correspondence with Ferriell indicates that he had the chance to assert his argument regarding his disability onset date before the Appeals Council. The regulations governing the reopening procedures require that the SSA notify a claimant of any revisions to his case as well as his rights to further review. 20 C.F.R. § 404.992(a); see also Soc. Sec. Admin., POMS § DI 27525.001 (2009), available at (outlining the process due to claimants during an adverse reopening). The September 14, 2007 letter Ferriell received from the Appeals Council notified him that it was reopening his decision and was planning to amend his date last insured with the result that he would be denied benefits. It also spelled out the opportunities available for him to contest this ruling. Specifically, the notice indicated that he could "send [the Appeals Council] more evidence or a statement about the facts and the law in your case," and that such evidence would be considered if "new and material" and "about `disability' starting on or before December 31, 2003, the date you were last insured for disability benefits." It also informed him that he could ask for an appearance before the Appeals Council.
This letter met the standards laid out in the reopening regulations and provided Ferriell with adequate notice and opportunity to state his objections to the Appeals Council's proposed decision and to provide it with additional evidence. In fact, Ferriell's representative did submit materials contesting the proposed revision to the Appeals Council; she asserted in a letter that the self-employment income recorded in Ferriell's revised tax returns for 1999 and 2000 extended his date last insured to December 31, 2005. Ferriell cannot tenably claim that he was unaware of his opportunity to also present his argument regarding his disability onset date. The notice he received placed no limits on what may be addressed in the "statement about the facts and law in your case" that he was entitled to present to the Appeals Council, and the description about what evidence he might submit explicitly stated that the Appeals Council would consider evidence of disability on or before December 31, 2003. Thus, since the Appeals Council's procedures provide Ferriell and similarly-situated individuals a fair opportunity to present arguments like Ferriell's claim for an amended onset date of disability, these procedures present a low risk of an erroneous deprivation of benefits.
Additionally, we do not see any merit in a procedure that would require the Appeals Council to remand Ferriell's case to an ALJ after it revised his date last insured. Since Ferriell did not present his argument on this issue nor any new evidence regarding his disability to the Appeals Council, it had before it only the written record presented to the ALJ and the testimony taken at the hearings before the ALJ on January 17, 2007 and February 26, 2007. Several times in the course of those proceedings, the ALJ pointed out the lack of evidence to support a finding that Ferriell was disabled prior to 2005. The ALJ noted that the only medical evidence in the record before 2005 was an August 2002 hospital report of the results of a pelvic x-ray that "only showed some mild changes." He also commented that "up until [2005], there just isn't really hardly any evidence at all, and I know you filed your claim back about then, in June of '05. . . . That's when your medical evidence starts . . . popping up." On this record, it is easy to see why the Appeals Council concluded that "there is no medical evidence prior to 2005" and declined to remand for a renewed finding on the onset date of Ferriell's disability. A decision against remanding the case is further bolstered by the fact that Ferriell had voluntarily amended his onset date to May 17, 2005 after the ALJ's above-quoted remarks, and had made no assertion since the reopening of his case that he could establish an onset date prior to the December 31, 2003 date last insured. Requiring remand here and in similar cases would drain SSA resources and impose a substantial administrative burden for little or no increase in the accuracy of benefits determinations.
Examined under the three Eldridge factors, the SSA's procedures for reopening disability decisions as applied in Ferriell's case do not violate the guarantees of due process. Ferriell had the chance to prove he was disabled prior to the revised December 31, 2003 date last insured. His inability to receive an adjudication of his disability status before May 17, 2005 resulted from his failure to present this argument to the Appeals Council, not faulty procedures. Therefore, the Fifth Amendment provides no basis for disturbing the Appeals Council's decision in Ferriell's case.
For the foregoing reasons, we AFFIRM the district court's judgment.

Establishing the onset date of disability is critical.

The ALJ may need the expert advice of a medical witness to pinpoint the date. The onset of disability may on occasion occur prior to the date of  the first recorded medical examination.
Consider the following case:
JOYCE L. KLAWINSKI, Plaintiff-Appellant,
No. 09-16033. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Filed August 6, 2010.
Before TJOFLAT, CARNES and FAY, Circuit Judges.
In this case, Joyce L. Klawinski, the claimant, sought review in the district court of the Commissioner's denial of her application for disability insurance benefits ("DIB"), 42 U.S.C. §§ 405(g), 1383(c)(3). The review was conducted by a magistrate judge with the parties' consent. See 28 U.S.C. § 636(c). The magistrate judge affirmed the Commissioner's decision, and Klawinski now appeals, presenting three arguments: (1) substantial evidence does not support the findings of the administrative law judge ("ALJ") that her past relevant work was sedentary in nature and that she could perform her past relevant work; (2) the ALJ contravened Social Security Ruling ("SSR") 83-20 by failing to obtain a medical expert during the hearing to determine her disability onset date; and (3) substantial evidence, in the form of medical evidence and factors such as her daily activities and the side effects from her medications, does not support the ALJ's adverse credibility finding which discounted her subjective pain testimony.
Our review in this appeal is "demarcated by a deferential reconsideration of the findings of fact and exacting examination of the conclusions of law." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The Commissioner's factual findings are conclusive if "supported by substantial evidence," but the "[Commissioner's] conclusions of law, including applicable review standards, are not presumed valid." Id. (quotation omitted). Substantial evidence is "more than a scintilla, but less than a preponderance," in that "it is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. (alterations and citation omitted).
The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven that she is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At the first step, the claimant must prove that she has not engaged in substantial gainful activity. At the second step, she must prove that she has an impairment or combination of impairments that is severe. If, at the third step, she proves that her impairment or combination of impairments meets or equals a listed impairment, she is automatically found disabled regardless of age, education, or work experience. If she cannot prevail at the third step, she must proceed to the fourth step where she must prove that she is unable to perform her past relevant work. If the claimant is unable to perform past relevant work, the case proceeds to the fifth and final step of the evaluation process for a determination of whether, in light of her residual functional capacity, age, education, and work experience, the claimant can perform other work. Id.
Klawinski argues that the ALJ erred in misclassifying her past secretarial work as sedentary when her specific duties in the family business actually involved light level of exertion. She asserts that her past work was a "composite job," consisting of duties of a secretary, office manager, and clerk, because her past position required her to stand and walk for more than four hours in an eight-hour workday, pick up parts and deliver them to job sites, and work in the showroom. She contends that the ALJ erred in only focusing on the less strenuous portion of her past relevant work and subsequently in determining that she could still perform those duties. She also contends that her composite position differs from the Dictionary of Occupational Titles's ("DOT") definition of a "secretary," and, thus, the ALJ erred in finding that she could still work as a secretary as such position is generally performed in the national economy.
As noted above, if the claimant has a severe impairment that does not equal or meet the severity of a listed impairment, the case proceeds to the fourth step of the sequential evaluation process and the claimant's RFC is compared with the physical and mental demands of the claimant's past relevant work. 20 C.F.R. § 404.1520(f). If it is found that the claimant can still perform her past relevant work, the claimant is not disabled. Id.
To determine the occupational exertion requirements in the national economy, jobs are classified as sedentary, light, medium, heavy, and very heavy. 20 C.F.R. § 404.1567. Sedentary work involves (1) lifting no more than ten pounds at a time, (2) predominantly sitting, and (3) occasionally standing and walking. Id. § 404.1567(a). Social Security Ruling 83-10 elaborates that "periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday." Kelley v. Apfel, 185 F.3d 1211, 1213, n.2 (11th Cir. 1999). Light work requires lifting no more than 20 pounds and frequently carrying 10 pounds, and a "good deal of walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b). To be considered capable of performing a full or wide range of light work, a claimant must have the ability to do substantially all of the listed activities under 20 C.F.R. § 404.1567(b). Id.
The DOT classifies a "secretary" as sedentary in nature, with the following duties:
Schedules appointments, gives information to callers, takes dictation, and otherwise relieves officials of clerical work and minor administrative and business detail: Reads and routes incoming mail. Locates and attaches appropriate file to correspondence to be answered by employer. Takes dictation in shorthand or by machine.
DOT Title 201.362-030. The DOT also defines the position of an "office manager" as sedentary, which includes the following duties:
Coordinates activities of clerical personnel in establishment or organization: Analyses and organizes office operations and procedures, such as typing, bookkeeping, preparation of payrolls, flow of correspondence, filing, requisition of supplies, and other clerical services. Evaluates office production, revises procedures, or devises new forms to improve efficiency of workflow. Establishes uniform correspondence procedures and style practices. Formulates procedures for systematic retention, protection, retrieval, transfer, and disposal of records. Plans office layouts and initiates cost reduction programs. Reviews clerical and personnel records to ensure completeness, accuracy, and timeliness. Prepares activities reports for guidance of management, using computer. Prepares employee ratings and conducts employee benefit and insurance programs, using computer. Coordinates activities of various clerical departments or workers within department. May prepare organizational budget and monthly financial reports. May hire, train, and supervise clerical staff. May compile, store, and retrieve managerial data, using computer.
DOT Title 169.167-034.
To support a finding that the claimant is able to return to her past relevant work, the ALJ must (1) consider all the duties of that work and (2) evaluate the claimant's ability to perform them in spite of her impairments. Lucas v. Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990). The burden is on the claimant to show that she can no longer perform her past relevant work as she actually performed it, or as it is performed in the national economy. Jackson v. Bowen, 801 F.2d 1291, 1293-94 (11th Cir. 1986) (rejecting the claimant's assertion that he could not specifically perform his past job, which required him to climb and descend stairs, because he failed to show that the position in general required climbing and descending stairs). Specifically, "[t]he regulations require that the claimant not be able to perform his past kind of work, not that he merely be unable to perform a specific job he held in the past." Id. at 1293 (citing 20 C.F.R. §§ 404.1520(e), 416.920(e) (1986)). Accordingly, where the claimant's specific prior job might have involved functional demands and duties significantly in excess of those generally required for such work by employers in the national economy, the claimant must still demonstrate that, in addition to being unable to perform the excessive functional demands actually required by her former job, she cannot perform the functional demands and job duties of the position as generally required by employers nationwide. SSR 82-61 (1982).
We conclude that substantial evidence supports the ALJ's findings that (1) Klawinski's past relevant work involved only a sedentary level of exertion, and (2) she failed to meet her burden to show that she could not perform her past relevant work.
Klawinski argues that the ALJ erred in failing to comply with SSR 83-20 in not calling a medical expert to the hearing to assess her RFC during the relevant period, especially because the record did not contain any medical determination of her RFC by the agency. She asserts that SSR 83-20 applies because the ALJ was required to determine retroactively whether she was disabled before the last insured date of December 31, 2004, as well as the onset date of her disability. Noting that we have not addressed the issue, she cites out-of-circuit law to address the issue of whether a medical advisor's testimony is necessary where an ALJ must retroactively determine a claimant's disability in the past and where the onset date is ambiguous. She submits that SSR 83-20 particularly applies to a slowly progressive disorder such as her knee condition.
Social Security Rulings are agency rulings published under the Commissioner's authority and are binding on all components of the Administration. Sullivan v. Zebley, 493 U.S. 521, 531 n.9, 110 S.Ct. 885, 891 n.9, 107 L.Ed.2d 967 (1990). Even though the rulings are not binding on us, we should nonetheless accord the rulings great respect and deference, if the underlying statute is unclear and the legislative history offers no guidance. B. ex rel. B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir. Unit B Apr. 1981).
Social Security Ruling 83-20 states, in relevant part, that:
In addition to determining that an individual is disabled, the decision maker must also establish the onset date of disability. In many claims, the onset date is critical; it may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits.
SSR 83-20. Further, SSR 83-20 defines the onset date of disability as "the first day an individual is disabled as defined in the Act and the regulations." There are two situations where the ruling suggests the need for the ALJ to call a medical advisor during a hearing: (1) where it may be possible, based on medical evidence, to "reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination"; and (2) in terms of a malignant neoplastic disease, "[t]o establish onset of disability prior to the time a malignancy is first demonstrated to be inoperable or beyond control by other modes of therapy." Id.
We conclude that the ALJ did not contravene SSR 83-20 because the ALJ ultimately found that Klawinski was not disabled, and SSR 83-20 only required the ALJ to obtain a medical expert in certain instances to determine a disability onset date after a finding of disability.

Klawinski argues that the ALJ's refusal to credit her testimony regarding pain and other symptoms she said she suffered is unsupported by substantial evidence. Specifically, Klawinski asserts that the following items of medical evidence in the record refute the ALJ's finding discounting her back pain: (1) an MRI report of her lumbar spine on May 16, 2003, which showed degenerative disc disease, disk bulging, and osteoarthritic changes, and (2) an MRI report on April 11, 2005, which showed, among other things, lumbar spondylosis, multilevel disc bulges, canal stenosis, facet arthropathy, and foraminal narrowing. This showed that her back problems began before December 31, 2004, her last insured date. Next, responding to the ALJ's finding that she was not debilitated to the point of being unable to perform daily activities, Klawinski contends that she did not have to show an inability to "perform any daily activities" to establish disability. She asserts, moreover, that the ALJ erred in failing to consider the entire record, which indicates that (1) she was in too much pain to perform housekeeping tasks such as doing laundry; (2) she hired a housekeeper to do most of the cleaning; and (3) she was limited in terms of activities such as cooking, shopping, and driving. She claims that the ALJ wrongly discredited her pain testimony by citing her ability to perform sporadic and limited household chores, as they do not preclude the presence of debilitating pain. Finally, she submits that medical literature confirms that the various pain medications she was taking could result in the side effects she experienced, and, thus, the ALJ erred in rejecting her subjective complaints of those side effects.
We apply a three-part pain standard when a claimant seeks to establish disability through her own testimony regarding pain or other subjective symptoms. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The pain standard requires:
(1) evidence of an underlying medical condition and either
(2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.
Id. The Commissioner "must consider a claimant's subjective testimony of pain" if the claimant satisfies the three-part test. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
If the record shows that the claimant has a medically determinable impairment that could reasonably be expected to produce her symptoms, such as pain, the ALJ must then evaluate the intensity and persistence of the symptoms so that he can determine how the symptoms limit the claimant's capacity for work. 20 C.F.R. § 404.1529(c)(1). In making this evaluation, the ALJ considers all of the record, including the objective medical evidence, the claimant's history, and statements by the claimant and her doctors. Id. The ALJ also considers factors such as the claimant's daily activities, the effectiveness and side effects of her medications, precipitating and aggravating factors, and other treatments and measures that she has taken to relieve the symptoms. Id. § 404.1529(c)(3). "If the ALJ decides not to credit a claimant's testimony as to her pain, he must articulate explicit and adequate reasons for doing so." Foote, 67 F.3d at 1561-62. "A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court." Id. at 1562. If the ALJ fails to articulate the reasons for discrediting subjective testimony, the testimony is accepted as true. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002).
Substantial evidence supports the ALJ's discounting of Klawinski's subjective pain testimony as unsupported by objective medical evidence and by factors such as her daily activities and the side effects of her medications.
In conclusion, we find no basis in Klawinski's arguments for setting aside the district court's decision. It is, accordingly,


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