                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 10-14957             JULY 20, 2011
                                                                      JOHN LEY
                                        Non-Argument Calendar           CLERK
                                      ________________________

                                D.C. Docket No. 1:09-cv-01518-WCO

H. KEITH ALEXANDER,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                              versus

COMMISSIONER OF SOCIAL SECURITY,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (July 20, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

         H. Keith Alexander appeals the district court’s order affirming the Social

Security Commissioner’s (Commissioner’s) denial of disability insurance benefits,
42 U.S.C. § 405(g). The Commissioner determined that Alexander was not

eligible for disability benefits because he failed to demonstrate his insured status

at the time he became disabled. To show that he met the insured status, Alexander

must have had sufficient quarters of coverage, in this case 20 quarters during the

40-quarter period ending with the quarter in which he became disabled (the 20/40

requirement). 20 C.F.R. § 404.130. Both the Administrative Law Judge (ALJ)

and the district court agreed with the Commissioner’s determination that

Alexander lacked the necessary quarters of coverage. After a thorough review of

the record, we affirm.

      I. Background

      On August 12, 2003, Alexander applied for disability benefits, alleging a

disability onset date of April 30, 2003. When he filed for disability, his earnings

record showed no quarters of coverage in 2001 or 2002. On the same day,

Alexander and his wife Monique submitted statements claiming that they owned a

business together and that the total earnings from their business for 2001 and 2002

should have been split between them. A few months later, the Commissioner

notified Alexander that it credited him with $7,713 in self-employment earnings

for 2001, but did not credit him with any earnings for 2002. The Commissioner

then denied Alexander’s application for benefits. On reconsideration in 2007, the

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Commissioner informed Alexander that he did not meet the insured status required

for disability benefits and that the $7,713 posted to his earnings record for 2001

was in error and would be removed and reposted to Monique’s record.

      At a subsequent hearing before an ALJ, Alexander’s attorney indicated that

Alexander wanted to amend the alleged onset date of disability to March 25, 2002,

when his doctor started treating Alexander regularly for pain. The ALJ informed

Alexander that there was a “technical problem” with his case because he would

not qualify for benefits without quarters of coverage for 2001 and 2002.

      Alexander testified that he met Monique in 1999 and began to work at her

company in 2001, the year they were married. Although Alexander was never

paid, he and Monique shared a joint bank account. Alexander worked between 25

and 35 hours per week doing computer-related work and bookkeeping for the

business. But by the end of 2002, Alexander could no longer work due to his

medical limitations.

      Monique then testified that Alexander set up and maintained the computer

systems, ran reports, and did the bookkeeping. His assistance depended on how

his health was at the time and he stopped working entirely in early 2003. Monique

never issued a W2 Form to Alexander showing employee income because she

considered him a co-owner of the business. According to the record, none of the

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tax forms, banking records, or state certificates of registration for the business

listed Alexander as co-owner.

       Alexander’s earnings record reflected that he had four quarters of coverage

in 1992, 1993, 1994, 1995, and 1996. He had no quarters of coverage in 1997,

1998, 1999, 2000, 2002, or 2003. In his disability report, Alexander indicated that

he had stopped working on April 30, 2003. An agency worksheet indicated that

without 2001 earnings, Alexander would not have insured status if his disability

onset date was April 30, 2003. But with earnings in 2001, Alexander’s last

insured date would have been December 31, 2002.

       The ALJ concluded that, based on the records and tax documents submitted,

Alexander’s and Monique’s testimony concerning his co-ownership of the

business lacked credibility. The ALJ found that, although it was reasonable to

expect that Alexander helped with bookkeeping and computing activities from

time to time, there was no evidence that the two owned the business together or

intended to create a partnership. Accordingly, the ALJ calculated that Alexander

only had 15 quarters of coverage in the 40 quarters immediately preceding the

quarter of his onset of disability on April 30, 2003.1 The ALJ stated that the


       1
          The ALJ determined that Alexander had three quarters of coverage in 1993; four
quarters in 1994; four quarters in 1995; four quarters in 1996; and no coverage from 1997
through 2002 and the first quarter of 2003.

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“documentary record and testimony [did] not support the claimant’s contention

that work activities he performed in 2001 and 2002 resulted in covered earnings

sufficient to confer additional quarters of coverage necessary to establish insured

status . . . as of his alleged onset date of disability.” The ALJ additionally found

that Alexander last met the insured status requirement on December 31, 2001,

before his alleged onset date of disability. The ALJ determined that, due to his

lack of disability insured status, Alexander had not been under a disability at any

time from his alleged onset date through the date of the decision. Alexander

appealed and the Appeals Council denied review.

      Alexander then filed a complaint in district court. The magistrate judge

found that substantial evidence supported the ALJ’s finding that the 2001 earnings

should have been attributed to Monique rather than to Alexander. The magistrate

judge also noted that the Appeals Council’s failure to consider Alexander’s

amended onset date in 2002 was harmless error because, without the 2001 quarters

of coverage, Alexander would not have been eligible for benefits based on either

onset date. Adopting these findings, the district court entered judgment in favor of

the Commissioner.

      On appeal, Alexander first argues that he met the insured requirement

before his alleged disability onset date based on his earnings from 2001.

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Specifically, Alexander asserts that in 2003 the agency added four quarters of

coverage to his 2001 earnings record, and that this decision was conclusive

because the appeal window and time limitation for revising the Commissioner’s

records passed and no time-limitation exception applied. Second, Alexander

argues that the ALJ misidentified his disability onset date as April 30, 2003

because Alexander had amended his onset date to March 25, 2002.

      II. Standard of Review

      We review the decision of the ALJ as the Commissioner’s final decision

when the ALJ denies benefits and the Appeals Council denies review of the ALJ’s

decision. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “Our review in

a Social Security case is the same as that of the district court.” Miles v. Chater, 84

F.3d 1397, 1400 (11th Cir. 1996). The standard of review 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).

      III. The 20/40 Requirement




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      To qualify for disability benefits, Alexander must have 20 quarters of

coverage during the 40-quarter period ending with the quarter in which he became

disabled. “[I]nsured status is a basic factor in determining if [a claimant is]

entitled to old-age or disability insurance benefits or to a period of disability . . . .

If [a claimant is] neither fully nor currently insured, no benefits are payable based

on [the claimant’s] earnings.” 20 C.F.R. § 404.101(a). In this case, Alexander

must establish both earnings coverage from 2001 and an amended disability onset

date of March 2002 to meet the 20/40 requirement.

             A. Earnings Coverage from 2001

      Although the Commissioner in this case originally determined that

Alexander had income from his wife’s business in 2001, the Commissioner later

corrected this finding and concluded that Alexander had no income in 2001.

Generally, the Commissioner may correct any entry of wages or self-employment

income before the expiration of the “time limitation.” 42 U.S.C. § 405(c)(4). The

time limitation is a period of 3 years, 3 months, and 15 days after the individual

received earnings. Id. at § 405(c)(1)(B). “Before the time limit ends for any year,

[the Commissioner] will correct the record of [an individual’s] earnings for that

year for any reason if satisfactory evidence shows SSA records are incorrect. [He]




                                            7
may correct the record as the result of a request filed under § 404.820 or [he] may

correct it on [his] own.” 20 C.F.R. § 404.821.

      After the time limit expires, the Commissioner’s records generally are

conclusive evidence of the individual’s wages or self-employment income. 42

U.S.C. § 405(c)(4)(A). But the statute and regulations permit the Commissioner

to correct an individual’s earnings records after the time limit under certain

circumstances. Id. at § 405(c)(5); 20 C.F.R. § 404.822. One of those

circumstances is when “an application for monthly benefits . . . was filed within

the time limitation following such year; except that no such change, deletion, or

inclusion may be made pursuant to this subparagraph after a final decision upon

the application for monthly benefits.” 42 U.S.C. § 405(c)(5)(A) (emphasis added).

This is known as the pending-application exception.

      In this case, we conclude that the Commissioner could amend Alexander’s

earnings record in 2007 under the pending-application exception because

Alexander had filed an application for benefits within the time limit for correcting

his earnings record and there was not yet a final decision on his application. 42

U.S.C. § 405(c)(5)(A) . Nothing in the statute or regulations prohibits the agency

from revisiting its earlier earnings record decision if there is a pending application.

42 U.S.C. § 405(c)(5)(A), (B); 20 C.F.R. § 404.822(c). Accordingly, the agency

                                           8
did not err when it addressed his 2001 earnings after the time limitation expired

and determined that he had no coverage that year.

             B. Alexander’s Disability Onset Date

      Social Security Rules define the onset date of disability as “the first day an

individual is disabled as defined in the Act and the regulations.” SSR 83-20.

Relevant factors in determining the onset date include a claimant’s allegations,

work history, and medical and other evidence related to the severity of the

impairment. Id.

      Here, the ALJ did not explain which disability onset date he applied,

although it appears from the opinion that he applied the April 2003 date.

Nevertheless, we conclude that the ambiguity as to Alexander’s disability onset

date is immaterial. Even if the ALJ relied on the amended March 2002 date,

Alexander would not be eligible for disability benefits without earnings coverage

in 2001.

      Accordingly, the Commissioner properly determined that Alexander did not

qualify for benefits.

      AFFIRMED.




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