United States Court of Appeals,
Fifth Circuit.
No. 95-30332.
Aubrey GEORGE, Plaintiff-Appellant,
v.
Shirley S. CHATER, Commissioner of Social Security, Defendant- Appellee.
March 5, 1996.
Appeal from the United States District Court for the Western District of Louisiana.
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER1, District Judge.
DUHÉ, Circuit Judge:
Aubrey George appeals the district court's affirmance of the
Social Security Administration's denial of disability insurance
benefits. We affirm.
BACKGROUND
George injured his neck while at work on March 23, 1982.
Surgery restored most of his neck motion, and George returned to
work as a bulldozer operator in 1984. On March 18, 1985, Appellant
was again injured at work, this time by a power saw that cut into
his left leg. Although the wound healed, scar tissue developed,
causing some degree of nerve damage. In February 1987, George was
diagnosed with diabetes and hypertension. His diabetes worsened in
1988.
On June 17, 1991, George applied for disability insurance
1 District Judge of the Northern District of California, sitting by designation.
1 benefits alleging disability since June 15, 1984, caused by his
neck injury, hypertension, and diabetes. He later amended the
disability onset date to March 23, 1982, the date he originally
injured his neck.
The Social Security Administration ("SSA") denied his
application both initially and on reconsideration. George
appealed. The administrative law judge denied George's claim,
finding that George was able to work as of December 31, 1984, when
his insured status expired pursuant to 42 U.S.C. § 423(c)(1). The
Appeals Council declined to review the ALJ's findings.
Appellant then filed suit contending that his prior two year
period of disability from March 1982 to March 1984, during which he
could not work because of his neck injury, should have been
excluded from the calculation of when his insured status expired.
If the two-year period were excluded, his insured status would not
expire until December 31, 1986, well after George suffered the leg
injury.
The district court referred the matter to a magistrate judge,
who recommended that George's appeal be dismissed. The magistrate
judge acknowledged that 42 U.S.C. § 423(c)(1) provides that, for
purposes of calculating the insured status of a claimant, "a
quarter shall not be counted as part of any period if any part of
such quarter was included in a period of disability unless such
quarter was a quarter of coverage." The judge, however, noted that
42 U.S.C. § 416(i)(2)(E) prohibits individuals from filing
applications for disability determinations after twelve months from
2 the end of the disability. Because George failed to apply for a
disability determination within twelve months following his neck
disability, the magistrate judge concluded that George could not
exclude the two-year period from March 1982 to March 1984 as a
"period of disability" in calculating his insured status. The
district court adopted the magistrate judge's recommendation and
dismissed. We now affirm.
DISCUSSION
"We review the Secretary's decision to deny disability
benefits by determining whether substantial evidence in the record
supports the decision and, further, whether proper legal standards
were used in evaluating the evidence." Falco v. Shalala, 27 F.3d
160, 162 (5th Cir.1994).
To be eligible for disability insurance benefits, a disabled
individual must be insured. 42 U.S.C. § 423(a)(1)(A). An
individual is insured for disability insurance if, among other
statutory requirements, "he had not less than 20 quarters of
coverage during the 40-quarter period which ends with the quarter
in which such month occurred." 42 U.S.C. § 423(c)(1)(B).
"Quarters of coverage" include quarters in which the applicant
earned certain amounts of wages or self-employment income. 20
C.F.R. §§ 404.101(b), 404.140-404.146. The parties agree that
applying this 20/40 provision to George results in the expiration
of his insured status on December 31, 1984.
The statute, however, excepts periods of disability from the
20/40 rule. 42 U.S.C. § 423(c)(1) provides that, for purposes of
3 calculating the termination date of the claimant's insured status,
"a quarter shall not be counted as part of any period if any part
of such quarter was included in a period of disability unless such
quarter was a quarter of coverage." George argues that the
two-year period following his neck injury in March 1982 constitutes
a "period of disability" as defined in 42 U.S.C. § 416(i)(2)(A).
Excluding the two years or, more accurately, the eight quarters
from the 20/40 calculation would extend George's insured status
until December 31, 1986.
For George to gain the benefit of a "period of disability,"
however, he must first file an application for a disability
determination. 42 U.S.C. § 416(i)(2)(E) provides that "no
application for a disability determination which is filed more than
12 months after the month prescribed by subparagraph (D) as the
month in which the period of disability ends (determined without
regard to subparagraph (B) and this subparagraph) shall be accepted
as an application for purposes of this paragraph." George failed
to file an application for a disability determination within the
twelve months following his neck injury.
Both George and the government agree that his failure to file
a timely application bars George from seeking disability insurance
benefits for the two-year period after March 1982. The dispute
concerns whether the twelve months limitation period precludes
George from claiming this prior period of disability in order to
extend the termination date of his insured status. We hold that
Section 416(i)(2)(E) bars an individual, seeking benefits for a
4 subsequent and unrelated period of disability, from excluding a
prior period of disability in the calculation of his insured
status.
Neither the Supreme Court nor the Fifth Circuit have addressed
this question. However, case law and the applicable administrative
regulation support our reading of the statute. 20 C.F.R. §
404.320(a) provides:
A period of disability is a continuous period of time during which you are disabled. If you become disabled, you may apply to have our records show how long your disability lasts. You may do this even if you do not qualify for disability benefits.
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United States Court of Appeals,
Fifth Circuit.
No. 95-30332.
Aubrey GEORGE, Plaintiff-Appellant,
v.
Shirley S. CHATER, Commissioner of Social Security, Defendant- Appellee.
March 5, 1996.
Appeal from the United States District Court for the Western District of Louisiana.
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER1, District Judge.
DUHÉ, Circuit Judge:
Aubrey George appeals the district court's affirmance of the
Social Security Administration's denial of disability insurance
benefits. We affirm.
BACKGROUND
George injured his neck while at work on March 23, 1982.
Surgery restored most of his neck motion, and George returned to
work as a bulldozer operator in 1984. On March 18, 1985, Appellant
was again injured at work, this time by a power saw that cut into
his left leg. Although the wound healed, scar tissue developed,
causing some degree of nerve damage. In February 1987, George was
diagnosed with diabetes and hypertension. His diabetes worsened in
1988.
On June 17, 1991, George applied for disability insurance
1 District Judge of the Northern District of California, sitting by designation.
1 benefits alleging disability since June 15, 1984, caused by his
neck injury, hypertension, and diabetes. He later amended the
disability onset date to March 23, 1982, the date he originally
injured his neck.
The Social Security Administration ("SSA") denied his
application both initially and on reconsideration. George
appealed. The administrative law judge denied George's claim,
finding that George was able to work as of December 31, 1984, when
his insured status expired pursuant to 42 U.S.C. § 423(c)(1). The
Appeals Council declined to review the ALJ's findings.
Appellant then filed suit contending that his prior two year
period of disability from March 1982 to March 1984, during which he
could not work because of his neck injury, should have been
excluded from the calculation of when his insured status expired.
If the two-year period were excluded, his insured status would not
expire until December 31, 1986, well after George suffered the leg
injury.
The district court referred the matter to a magistrate judge,
who recommended that George's appeal be dismissed. The magistrate
judge acknowledged that 42 U.S.C. § 423(c)(1) provides that, for
purposes of calculating the insured status of a claimant, "a
quarter shall not be counted as part of any period if any part of
such quarter was included in a period of disability unless such
quarter was a quarter of coverage." The judge, however, noted that
42 U.S.C. § 416(i)(2)(E) prohibits individuals from filing
applications for disability determinations after twelve months from
2 the end of the disability. Because George failed to apply for a
disability determination within twelve months following his neck
disability, the magistrate judge concluded that George could not
exclude the two-year period from March 1982 to March 1984 as a
"period of disability" in calculating his insured status. The
district court adopted the magistrate judge's recommendation and
dismissed. We now affirm.
DISCUSSION
"We review the Secretary's decision to deny disability
benefits by determining whether substantial evidence in the record
supports the decision and, further, whether proper legal standards
were used in evaluating the evidence." Falco v. Shalala, 27 F.3d
160, 162 (5th Cir.1994).
To be eligible for disability insurance benefits, a disabled
individual must be insured. 42 U.S.C. § 423(a)(1)(A). An
individual is insured for disability insurance if, among other
statutory requirements, "he had not less than 20 quarters of
coverage during the 40-quarter period which ends with the quarter
in which such month occurred." 42 U.S.C. § 423(c)(1)(B).
"Quarters of coverage" include quarters in which the applicant
earned certain amounts of wages or self-employment income. 20
C.F.R. §§ 404.101(b), 404.140-404.146. The parties agree that
applying this 20/40 provision to George results in the expiration
of his insured status on December 31, 1984.
The statute, however, excepts periods of disability from the
20/40 rule. 42 U.S.C. § 423(c)(1) provides that, for purposes of
3 calculating the termination date of the claimant's insured status,
"a quarter shall not be counted as part of any period if any part
of such quarter was included in a period of disability unless such
quarter was a quarter of coverage." George argues that the
two-year period following his neck injury in March 1982 constitutes
a "period of disability" as defined in 42 U.S.C. § 416(i)(2)(A).
Excluding the two years or, more accurately, the eight quarters
from the 20/40 calculation would extend George's insured status
until December 31, 1986.
For George to gain the benefit of a "period of disability,"
however, he must first file an application for a disability
determination. 42 U.S.C. § 416(i)(2)(E) provides that "no
application for a disability determination which is filed more than
12 months after the month prescribed by subparagraph (D) as the
month in which the period of disability ends (determined without
regard to subparagraph (B) and this subparagraph) shall be accepted
as an application for purposes of this paragraph." George failed
to file an application for a disability determination within the
twelve months following his neck injury.
Both George and the government agree that his failure to file
a timely application bars George from seeking disability insurance
benefits for the two-year period after March 1982. The dispute
concerns whether the twelve months limitation period precludes
George from claiming this prior period of disability in order to
extend the termination date of his insured status. We hold that
Section 416(i)(2)(E) bars an individual, seeking benefits for a
4 subsequent and unrelated period of disability, from excluding a
prior period of disability in the calculation of his insured
status.
Neither the Supreme Court nor the Fifth Circuit have addressed
this question. However, case law and the applicable administrative
regulation support our reading of the statute. 20 C.F.R. §
404.320(a) provides:
A period of disability is a continuous period of time during which you are disabled. If you become disabled, you may apply to have our records show how long your disability lasts. You may do this even if you do not qualify for disability benefits. If we establish a period of disability for you, the months in that period of time will not be counted in figuring your average earnings. If benefits payable on your earnings record would be denied or reduced because of a period of disability, the period of disability will not be taken into consideration.
(Emphasis added.). The claimant's ability to seek a declaration of
a period of disability, even if the claimant cannot receive
benefits for that period, suggests that the statute contemplates
applications by individuals, such as George, who file only to
extend their insured status. Moreover, this regulation further
explains that to be entitled to exclude a "period of disability" a
claimant must file an application within the twelve month time
limit. 20 C.F.R. § 404.320(b)(3).
Additionally, the case law from other circuits runs counter to
George's view that the statute of limitations exempts persons
filing to extend their insured status.2 In Arnone v. Bowen, 882
2 Although the Ninth Circuit has suggested a different view of 20 C.F.R. § 404.320(a), see Sprow v. Bowen, 865 F.2d 207, 209 (9th Cir.1989), this suggestion appeared only in dicta and we find its reasoning unpersuasive.
5 F.2d 34, 38 (2d Cir.1989), the Second Circuit held that 42 U.S.C.
§ 416(i)(2)(E) and its regulatory counterpart, 20 C.F.R. §
404.320(a), apply to individuals claiming a prior period of
disability in order to extend their insured status. The Sixth
Circuit likewise held that the limitations period applied to an
individual seeking benefits for his earlier period of disability.
See Henry v. Gardner, 381 F.2d 191 (6th Cir.), cert. denied, 389
U.S. 993, 88 S.Ct. 492, 19 L.Ed.2d 487 (1967); Mullis v. Bowen,
861 F.2d 991, 994 (6th Cir.1988).3
Appellant distinguishes himself from the claimants in these
cases because he does not seek to recover any benefits for his
prior period of disability, but rather seeks only to exclude the
prior period from the calculation of his insured status. We do not
see the relevance of this distinction. As a statute of
limitations, Section 416(i)(2)(E) is designed to prevent parties
from litigating stale disability claims, regardless of the
claimant's motives. Thus, a person cannot revive an otherwise
stale period of disability by using the prior period for an
extension in the termination date of his insured status. Because
a contrary result would eviscerate the limitations period, the
statute necessarily bars all claims filed more than twelve months
3 Appellant relies on another Sixth Circuit opinion, Hall v. Secretary, Dep't of Health and Human Services, 774 F.2d 1162 (6th Cir.1985). However, Hall is an unpublished opinion with little precedential value even in the Sixth Circuit itself. Moreover, Hall stands only for the proposition, which does not apply here, that a claimant suffering intermittent periods of disability stemming from the same condition may not be barred from seeking benefits for those prior periods.
6 after the end of a disability.
CONCLUSION
For the foregoing reasons, the decision of the district court
is AFFIRMED.