                 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this opinion should not be published and is not precedent except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.




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