1District Judge of the Northern District of California,

sitting by designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 95-30332.

Aubrey GEORGE, Plaintiff-Appellant,

v.

Shirley S. CHATER, Commissioner of Social Security, DefendantAppellee.

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
2

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
3

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
4

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
 

2Although 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

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
 

3Appellant 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

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
7

after the end of a disability.

CONCLUSION

For the foregoing reasons, the decision of the district court

is AFFIRMED.