IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60223
DORIS COLE, on behalf of James E Cole, Deceased,
Plaintiff-Appellant,
versus
JO ANNE B BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Mississippi
4:99-CV-171-B-A
March 7, 2002
Before HIGGINBOTHAM, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Doris Cole, on behalf of her deceased husband James E. Cole,
seeks judicial review under 42 U.S.C. § 405(g) of the
Commissioner's partially favorable decision on her husband's
application for supplemental security income and disability
insurance benefits. The district court adopted the report and
recommendation of the magistrate judge, reversing the
Commissioner's August 27, 1996 decision and remanding to the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Commissioner for further consideration of whether Mr. Cole's work
from September 1992 to December 1992 qualifies as an unsuccessful
work attempt that would alter Mr. Cole's disability onset date.
Mrs. Cole argues that the district court erred in, inter alia,
failing to consider her objection to the magistrate judge's failure
to address whether the Appeals Council erroneously affirmed the
ALJ's decision to reopen and withdraw the ALJ's April 1992 decision
after receiving evidence that Mr. Cole had returned to work at the
substantial-gainful-activity level.
Social security regulations allow a decision to be reopened
for good cause if done within two years of the initial
determination on an SSI application and within four years of the
initial determination on a DIB application.1 We have jurisdiction
to consider whether there is error in such a decision to reopen for
good cause under 20 C.F.R. §§ 404.989(a) and 416.1489(a) when the
reopening and withdrawal of the ALJ's April 1992 decision led to
the ALJ's August 27, 1996 partially unfavorable decision under
review in the instant 42 U.S.C. § 405(g) action.2
When, as here, the Appeals Council modified the decision of
the ALJ to reopen in the Appeals Council's June 9, 1995 order
1
Cieutat v. Bowen, 824 F.2d 348, 353 n.5 (5th Cir. 1987); 20
C.F.R. § 404.988(b); 20 C.F.R. § 416.1488(b). Here, the initial
determinations were made on October 18, 1990, and the ALJ's
decision to reopen was issued August 14, 1992.
2
See Cieutat, 824 F.2d at 358 n.15.
2
vacating the ALJ's May 9, 1994 hearing decision and remanding for
further proceedings, it is the decision of the Appeals Council and
the reasons it offers for reopening which control our review.3 It
is well-established that we may only affirm the Commissioner's
decision on the grounds which he stated for doing so.4 Here, the
ALJ apparently based his decision to reopen on "[n]ew and material
evidence ... furnished" after he issued his April 1992 favorable
decision.5 However, while the Appeals Council "concur[red] with
the [ALJ's] action to reopen the award of benefits," the Appeals
Council rejected this "new and material evidence" ground for doing
so by stating that it "agree[d] with the representative that the
information regarding the claimant's work activity was available to
the [ALJ] at the time he issued the April 1992 favorable decision."
However, the Appeals Council observed that "this fact alone does
not bar application of the reopening provisions of 20 CFR
404.988(a)(3) [sic] and 416.1489(a)(3)." 20 C.F.R. §§
3
See Dominick v. Bowen, 861 F.2d 1330, 1332 (5th Cir. 1988);
Lawler v. Heckler, 761 F.2d 195, 197, 198 n.1 (5th Cir. 1985);
Carry v. Heckler, 750 F.2d 479, 482-84 (5th Cir. 1985); see also
Duthu v. Sullivan, 886 F.2d 97, 98-99 (5th Cir. 1989); Ellis v.
Bowen, 820 F.2d 682, 683-84 (5th Cir. 1987); cf. Cieutat, 824 F.2d
at 352-54.
4
See Trencor, Inc. v. NLRB, 110 F.3d 268, 272 & n.5 (5th
Cir. 1997); NLRB v. Brookshire Grocery Co., 919 F.2d 359, 367 n.9
(5th Cir. 1990); Chem. Mfrs. Ass'n v. EPA, 899 F.2d 344, 359 (5th
Cir. 1990); Am. Petroleum Inst. v. EPA, 787 F.2d 965, 976 (5th Cir.
1986); Tex. Power & Light Co. v. FCC, 784 F.2d 1265, 1269-70 (5th
Cir. 1986).
5
20 C.F.R. § 404.989(a)(1); id. § 416.1489(a)(1).
3
404.989(a)(3) and 416.1489(a)(3) provide that good cause for
reopening will be found if "[t]he evidence that was considered in
making the determination or decision clearly shows on its face that
an error was made." Contrary to the Commissioner's claim on
appeal, an error of this sort cannot be shown through the work
activity report completed by Mr. Cole on May 18, 1992, after the
ALJ issued his April 1992 favorable decision, since this report
"was [not] considered in making the ... decision."6
The Appeals Council, however, "conclude[d] that a failure to
consider pertinent evidence can be the basis for finding good
cause" to reopen under the regulations and that, "[b]ecause the
claimant engaged in substantial gainful activity after the waiting
period but before the lapse of the 12-month period after the onset
of disability, and before the decision to award benefits," the ALJ
properly "reopen[ed] the award of benefits under the provisions of
Social Security Ruling 82-52."7 In deciding whether the
Commissioner is correct in interpreting the provision finding good
6
Id. § 404.989(a)(3); id. § 416.1489(a)(3).
7
The Appeals Council also noted:
Under Social Security Ruling 82-52, when an
individual returns to work before the award of benefits
and prior to the lapse of the 12-month period after
onset, the claim must be denied. The claimant's work
activity beginning June 1991 continued uninterrupted
through June 1992 at earnings levels representing
substantial gainful activity (Exhibit 46); therefore,
this work activity may not be disregarded as an
unsuccessful work attempt.
4
cause where an error clearly shown on the face of "[t]he evidence
that was considered in making the determination or decision"
includes "a failure to consider pertinent evidence," we note that
"we are not free to set aside the [Commissioner's] interpretation
simply because we may have interpreted the regulations differently
as an original matter" but rather "[w]e must accept the
[Commissioner's] interpretation unless that interpretation is
plainly inconsistent with the language of the regulations."8 The
majority of courts of appeals that have considered the issue have
also decided that "error" clearly shown on the face of the evidence
considered in making the decision may be legal or factual.9
Even assuming the Commissioner's interpretation of 20 C.F.R.
§§ 404.989(a)(3) and 416.1489(a)(3) is correct,10 we review de novo
the conclusion that good cause exists for reopening.11 Here, the
Appeals Council erred in determining that error in the April 1992
decision was shown on the face of evidence not considered based on
8
Cieutat, 824 F.2d at 352 (footnote omitted); see also id.
at 356 n.13.
9
See Mines v. Sullivan, 981 F.2d 1068, 1069 (9th Cir. 1992)
(citing cases).
10
This is far from certain. This interpretation that good
cause may be found under 20 C.F.R. §§ 404.989(a)(3) and
416.1489(a)(3) through "a failure to consider pertinent evidence"
may be plainly inconsistent with the language of these regulations
providing for good cause where "[t]he evidence that was considered
in making the determination or decision clearly shows on its face
that an error was made."
11
See Cieutat, 824 F.2d at 357-58.
5
Social Security Ruling 82-52. The continuing validity of this
ruling is at issue in a case pending decision before the Supreme
Court.12 However, under Fifth Circuit law, "the twelve-month
durational requirement for disability could be met in severe mental
illness cases even though a claimant is able to work sporadically
at a series of jobs," so long as "a claimant has presented medical
evidence which 'indicates that his mental condition is a long-term
problem and not just a temporary set-back.'"13 Thus, "a claimant
whose claim is based on a mental condition does not have to show a
12 month period of impairment unmarred by any symptom-free
interval."14 Additionally, "the Secretary must consider whether an
applicant with a serious mental illness remains able to engage in
substantial gainful activity when, although he is capable of
performing work, he cannot maintain regular employment," i.e.,
"whether the claimant can hold whatever job he finds for a
significant period of time."15
12
See Walton v. Apfel, 235 F.3d 184 (4th Cir. 2000), cert.
granted sub nom., Massanari v. Walton, 122 S. Ct. 24 (2001). Oral
argument was heard by the Court on January 16, 2002. This circuit
has never specifically considered the effect or validity of Ruling
82-52.
13
Leidler v. Sullivan, 885 F.2d 291, 292 (5th Cir. 1989)
(quoting Singletary v. Bowen, 798 F.2d 818, 822 (5th Cir. 1986)).
14
Singletary, 798 F.2d at 821.
15
Leidler, 885 F.2d at 292-93.
6
In the April 1992 decision, the ALJ determined that Mr. Cole
had been disabled since November 1, 1990, a year after his alleged
onset date, because his chronic depression met the severity
requirements of the listing for affective disorders. Although Mr.
Cole testified at the August 1991 hearing that he had returned to
work as a truck driver about two months earlier in June 1991, the
ALJ determined that Mr. Cole had not engaged in substantial gainful
activity since November 1, 1990.
Under Singletary and its progeny, there is no error in the
April 1992 favorable decision clearly shown on the face of the
evidence that Mr. Cole had returned to work as a truck driver about
two months earlier in June 1991. Even if the ALJ had considered
this evidence, such employment activity would not prevent a
determination that Mr. Cole was disabled by his mental condition
beginning November 1, 1990. Under this circuit's precedent, Mr.
Cole's testimony did not establish that he failed to meet the
twelve-month durational requirement for disability or that he was
capable of maintaining regular employment. Although the fact that
the claimant engaged in substantial gainful activity after the
waiting period but before the lapse of the 12-month period after
the onset of disability and before the decision to award benefits
would make the award of benefits erroneous under Ruling 82-52, the
April 1992 favorable decision is not erroneous on the face of this
evidence under this circuit's well-settled precedent.
7
Accordingly, because the ALJ's decision to reopen and withdraw
its April 1992 decision cannot be upheld on the basis on which it
was affirmed by the Appeals Council, we conclude that the decision
to reopen and withdraw the ALJ's April 1992 decision was in error.
The district court's judgment is reversed and the case is remanded
with instructions to vacate the Commissioner's decision and remand
to the Social Security Administration for reinstatement of the
ALJ's April 1992 favorable decision.
8