CHAPTER 8
ALLEGED ONSET DATE (AOD)
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.
FERRIELL v. COMMISSIONER OF SOCIAL SECURITY
WILLIAM FERRIELL, PLAINTIFF-APPELLANT,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.
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.
OPINION
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
DISCUSSION
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
http://www.ssa.gov/OP_Home/rulings/ar/11/AR87-02-ar-11.html, 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 http://policy.ssa.gov/poms.nsf/links/0427525001 (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.
CONCLUSION
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:
KLAWINSKI v. COMMISSIONER OF SOCIAL SECURITY
JOYCE L. KLAWINSKI, Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No.
09-16033. Non-Argument Calendar.
United
States Court of Appeals, Eleventh Circuit.
Filed
August 6, 2010.
Before
TJOFLAT, CARNES and FAY, Circuit Judges.
PER
CURIAM:
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.
I.
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.
II.
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.
III.
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,
AFFIRMED.
Read more at https://www.amazon.com/author/
No comments:
Post a Comment