Opinion

Ferriell v. Commissioner of Social Security

614 F.3d 611
2010 U.S. App. LEXIS 14819
2010 WL 2813478

Court: Court of Appeals for the Sixth Circuit
Filed: Jul 20, 2010
Status: Published
Author: Kennedy
On the bench: Kennedy, Rogers, Kethledge
Cited by: 13 cases
Authority: More cited than 72.4%

applying Eldridge to determine whether a social security hearing “passes constitutional muster”

How later courts described this case

applying Eldridge to determine whether a social security hearing “passes constitutional muster”
“In 4 the context of a social security hearing, due process requires that the proceedings 5 be full and fair.”
“In the context of a [S]ocial [S]ecurity hearing, due process requires that the proceedings be full and fair”
“In the context of a social security hearing, due 6 process requires that the proceedings be full and fair.”

Written by the judges who cited it.

The opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0209p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

WILLIAM FERRIELL,

Plaintiff-Appellant,

No. 09-5597

Defendant-Appellee. -

COMMISSIONER OF SOCIAL SECURITY,

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 07-00696—Edward H. Johnstone, District Judge.

Decided and Filed: July 20, 2010

Before: KENNEDY, ROGERS, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Julie Atkins, ATKINS LAW OFFICE, Harlan, Kentucky, for Appellant. J.

Patrick Powers, Mary Ann Sloan, Dennis R. Williams, Douglas G. Wilson, Brian Seinberg,

SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE GENERAL COUNSEL,

Atlanta, Georgia, James H. Barr, ASSISTANT UNITED STATES ATTORNEY, Louisville,

Kentucky, for Appellee.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. In this social security case, Plaintiff seeks review of the

Appeals Council’s decision that he is not entitled to receive disability benefits. Because we

find that the decision in Plaintiff’s case was entered pursuant to the Appeals Council’s

authority to reopen and revise the decisions of an administrative law judge, and that the

procedures used did not violate Plaintiff’s right to due process, we AFFIRM the district

court’s ruling upholding the Appeals Council’s decision.

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 2

FACTUAL AND PROCEDURAL BACKGROUND

On May 17, 2005, William Ferriell submitted an application for social security

disability benefits, claiming that ailments in his back and lungs had rendered him disabled

since August 1, 1998. Ferriell had worked full-time as an auto mechanic from 1964 through

1998, but had not held a full-time job since 1998. His application was initially denied on

August 10, 2005, then denied on reconsideration on November 21, 2005.

Ferriell requested and was granted a hearing before an administrative law judge

(“ALJ”). ALJ Patrick Kimberlin convened a hearing in Ferriell’s case on January 17, 2007,

but decided to reschedule it once Ferriell’s representative presented him with amended tax

returns for 1999 and 2000 that she asserted would push back Ferriell’s date last insured. A

full hearing was held on February 26, 2007, during which the ALJ indicated he had

“recalculated” Ferriell’s date last insured as December 31, 2005, rather than the December

31, 2003 date established during the initial determination. After this pronouncement and the

conclusion of Ferriell’s testimony, Ferriell’s representative stated that Ferriell wished to

amend his onset date to May 17, 2005, the date of his application. The ALJ accepted the

amendment, and on April 19, 2007 he issued a decision fully favorable to Ferriell,

concluding that Ferriell was entitled to disability benefits beginning on May 17, 2005.

On June 27, 2007, the Assistant Regional Commissioner for Processing Center

Operations from the Southeastern Program Service Center referred Ferriell’s case to the

Office of Disability Adjudication and Review (“ODAR”). The referral stated that Ferriell’s

earning records indicated he did not have enough periods of covered social security income

to qualify for benefits on May 17, 2005, though he would have enough covered income to

qualify for benefits based on an August 1, 1998 onset date. The Assistant Regional

Commissioner recommended that the Appeals Council initiate own-motion review or reopen

and revise Ferriell’s case to investigate the issue.

On September 14, 2007, the Appeals Council notified Ferriell via letter that it was

reopening and revising the hearing decision in his case. The letter explained that the

Appeals Council had authority to revise Ferriell’s decision because less than four years had

passed from the initial determination and “good cause” to reopen existed since the evidence

considered by the ALJ clearly showed that there was an error. The letter went on to state

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 3

that the Appeals Council planned to enter a decision that Ferriell was not entitled to

disability benefits as of May 17, 2005 because a “transpositional error” had caused the ALJ

to record his date last insured as December 31, 2005 instead of December 31, 2003. The

letter concluded by indicating that Ferriell had thirty days to present a statement of the law

and facts of his case, new evidence, and/or a request to appear before the Appeals Council

prior to the entry of its final decision in his case. Ferriell’s representative responded to the

Appeals Council’s notice by sending a letter to the Appeals Council arguing that Ferriell’s

December 31, 2005 date last insured was justified by amended tax returns for the years 1999

and 2000, which Ferriell had submitted to the IRS in 2006 in order to report additional self-

employment income. Nevertheless, on November 20, 2007, the Appeals Council issued a

decision unfavorable to Ferriell. It rejected Ferriell’s argument for an extension of his date

last insured, citing section 205(c)(4)(C) of the Social Security Act, 42 U.S.C. § 405(c)(4)(C),

as precluding the retroactive crediting of self-employment income after a certain time period

had elapsed. Since this cut-off date was April 15, 2003 for self-employment income from

1999, and April 15, 2004 for 2000 income, the Appeals Council concluded that Ferriell had

not submitted his amended returns in time to be given credit for the self-employment

earnings recorded therein. It found that Ferriell’s date last insured was December 31, 2003

and, as there was no evidence of disability prior to 2005, that he was not entitled to disability

benefits.

Ferriell sought judicial review of the Appeals Council’s decision in the United States

District Court for the Western District of Kentucky, arguing that the Appeals Council was

time-barred from considering his case and that the Appeals Council’s decision denied him

due process. The district court affirmed the Appeals Council, and Ferriell timely appealed

to this court.

DISCUSSION

Ferriell’s brief does not contest the substance of the Commissioner’s ruling in his

case, but does object to the procedures through which he was determined ineligible for

disability benefits. Specifically, he asserts that Social Security Administration (“SSA”)

regulations make the Appeals Council’s action in his case untimely, and that he was denied

due process in the determination of the onset date of his disability. The district court denied

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 4

both of these claims, but we review a district court’s conclusions in a social security case de

novo. Valley v. Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). We consider each

issue in turn.

I. Timeliness of Appeals Council’s Action

Ferriell first argues that his case was not properly before the Appeals Council when

it overturned the ALJ’s ruling in his favor, which fact deprived it of jurisdiction to reopen

and revise the ALJ’s decision. To evaluate his contention as it applies to this case, we must

examine the SSA procedures that allow the Appeals Council to alter an ALJ’s disability

decision on its own motion. Under regulations providing for the direct review of ALJ

decisions, the Appeals Council may initiate review of a “hearing decision or . . .

dismissal of a hearing request,” 20 C.F.R.§ 404.967, “[a]nytime within 60 days after the

date of a decision or dismissal,” id. § 404.969(a). “The Appeals Council’s decision to

review a case is established by its issuance of the notice of review,” id. § 404.969(d),

which is a notice mailed to all parties “stating the reasons for the review and the issues

to be considered,” id. § 404.973. The Appeals Council will review a case if: “(1) [t]here

appears to be an abuse of discretion by the [ALJ]; (2) [t]here is an error of law; (3) [t]he

action, findings or conclusions of the [ALJ] are not supported by substantial evidence;

or (4) [t]here is a broad policy or procedural issue that may affect the general public

interest.” Id. § 404.970(a).

In addition to the direct review procedures, SSA regulations allow the SSA to

reopen and revise some decisions that are otherwise final and binding on its own

initiative. Id. § 404.987. A decision may be reopened “[w]ithin four years of the date

of the notice of the initial determination” on a finding of “good cause.” Id.

The regulations governing direct review by the Appeals Council and the reopening of decisions

and determinations also give claimants the opportunity to initiate review or reopening. See 20 C.F.R.

§§ 404.967, 404.968, 404.987(a). As this case does not involve claimant-initiated proceedings, we have

framed our opinion in terms of the Appeals Council’s own-motion authority for ease of exposition only;

we note that our holding is not meant to restrict a claimant’s ability to seek Appeals Council review under

the direct review or reopening procedures.

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 5

§ 404.988(b).2 “Good cause” to reopen a decision exists if: “(1) [n]ew and material

evidence is furnished; (2) [a] clerical error in the computation or recomputation of

benefits was made; or (3) [t]he evidence that was considered in making the

determination or decision clearly shows on its face that an error was made.” Id.

§ 404.989(a).

The Appeals Council revised Ferriell’s case more than sixty days after the ALJ’s

decision, so its action must be authorized by the reopening procedures in order to be

lawful under SSA regulations. Ferriell asserts that the Appeals Council cannot reopen

an ALJ’s decision unless the case is properly before it, that is, unless it had previously

asserted its jurisdiction over the case under the review procedures. In other words, he

contends that the Appeals Council’s failure to initiate review of his case within the sixty-

day time limit acts as a jurisdictional bar to its authority to reopen it. The Commissioner

advances an alternative interpretation: The Appeals Council can reopen an ALJ’s

decision pursuant to the reopening procedures regardless of whether it had undertaken

review proceedings within the sixty-day period. Under this view, direct review of an

ALJ’s decision is a completely separate process from the reopening of an ALJ’s

decision, and the Appeals Council has authority to do either as long as it acts in

accordance with the regulations governing its chosen procedure.

The correct interpretation of the Appeals Council’s authority to reopen ALJ

decisions after more than sixty days has not been definitively determined in this circuit.

In Fox v. Bowen, 835 F.2d 1159 (6th Cir. 1987), this court upheld the Appeals Council’s

authority to reopen a disability decision more than one year after the ALJ’s initial

decision, based on a showing of “good cause” under 20 C.F.R. § 404.988(b). This

holding supports the Commissioner’s interpretation of the direct review and reopening

procedures, but it does not foreclose Ferriell’s argument. First, the court in Fox did not

consider nor decide the specific issue in this case, namely, whether the direct review

A decision or determination may also be reopened “[w]ithin 12 months of the date of the notice

of the initial determination, for any reason,” 20 C.F.R. § 404.988(a), or “[a]t any time” if it involves certain

enumerated circumstances, id. § 404.988(c). As neither party argues that these provisions provide grounds

to reopen the decision in Ferriell’s case, we focus on § 404.988(b).

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 6

procedures create a jurisdictional limitation on the Appeals Council’s reopening

authority. Therefore, a holding in Ferriell’s favor on this issue would not be precluded

by our published decision in Fox. See 6th Cir. R. 206(c) (“Reported panel opinions are

binding on subsequent panels.”). Second, since the decision in Fox, the SSA has

amended 20 C.F.R. § 404.969 governing own-motion review by the Appeals Council in

a manner that speaks to the Appeals Council’s power under the reopening provisions.

No panel of this court has yet to construe the new regulation’s impact on the reopening

procedures. For these reasons, we proceed to examine the direct review and the

reopening regulations in order to determine if there is reason to deviate from the result

in Fox.

Before beginning our analysis, we note that we do not start with a blank slate.

An agency’s interpretation of its regulations must be considered, even on pure legal

questions such as this one. Davis v. Sec’y of Health & Human Servs., 867 F.2d 336, 338

(6th Cir. 1989); see also MCI Telecomms. Corp. v. Ohio Bell Tel. Co., 376 F.3d 539 (6th

Cir. 2004). The SSA’s interpretation of the regulations at issue is entitled to substantial

deference; it will be upheld unless plainly erroneous or inconsistent with the regulations.

Auer v. Robbins, 519 U.S. 452, 461 (1997); Wilson v. Comm’r of Soc. Sec., 378 F.3d

541, 549–50 (6th Cir. 2004).

The basis for Ferriell’s argument is a potential ambiguity in the reopening

regulations, which do not explicitly specify which component level of the SSA possesses

the authority to reopen and revise a final decision or determination. The reopening

provisions use the general terms “we,” “us,” and “our” to describe who has authority to

reopen a decision. See, e.g., 20 C.F.R. § 404.987 (“[A] determination or decision made

in your case which is otherwise final and binding may be reopened and revised by us. . . .

We may reopen a final determination or decision on our own initiative . . . .”); id.

§ 404.989 (“We will find that there is good cause to reopen a determination or decision

if . . . .”). Since “we,” “us,” and “our” refer simply to the SSA, id. § 404.901, the

reopening regulations seem neither to provide guidance nor to place limits on which

level of the SSA may invoke the reopening procedures. In fact, this led the Eleventh

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 7

Circuit in Butterworth v. Bowen, 796 F.2d 1379 (11th Cir. 1986), to adopt the

interpretation of the reopening procedures advanced by Ferriell. The court upheld the

petitioner’s argument that:

[A] reading of the regulations in context indicates that a final

ruling—whether a determination or a decision—may be reopened and

revised only by a component level which has jurisdiction over the

case. . . . First, appropriate conditions as listed in section 404.988 must

exist, and second, the case must be properly before that particular

component level before it may exercise reopening authority. [T]here are

several methods by which a decision may be properly before the Appeals

Council[,] . . . [for example it] may take the case on its own motion

review . . . .

Id. at 1386.

However, the SSA has on several occasions advanced an interpretation of the

reopening provisions that rejects Ferriell’s reading in favor of the Commissioner’s.

After the decision in Butterworth, the SSA promulgated an Acquiescence Ruling

disapproving of the decision as “contrary to SSA policy” and specifying that it applies

“only to decisions at the Appeals Council level and only to cases in which the claimant

resides in Alabama, Florida, or Georgia at the time of the Appeals Council’s review.”

Social Security Acquiescence Ruling 87–2(11) (May 1, 1987), available at

http://www.ssa.gov/OP_Home/rulings/ar/11/AR87-02-ar-11.html, rescinded, Rescission

of Social Security Acquiescence Ruling 87–2(11), 63 Fed. Reg. 36,726 (July 7, 1998).

It described its interpretation of the reopening provisions as follows:

20 C.F.R. [§§] 404.987–404.995 . . . use the word “we” to signify SSA

components, including the Appeals Council, and thus vest the authority

to reopen and revise in the Appeals Council as well as in other SSA

components. Therefore, under SSA policy, the Appeals Council may

reopen and revise any ALJ or Appeals Council decision if the procedures

and conditions set forth in 20 C.F.R. [§§] 404.987 and 404.988 . . . are

met. Such actions are subject only to the time limits found in those

provisions and not the time limits of any other regulations.

Id. (emphasis added).

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 8

More importantly, in 1998 the SSA amended 20 C.F.R. § 404.969 governing the

Appeals Council’s own-motion review procedures, and included language with which

it sought to codify its interpretation of the Appeals Council’s authority under the

reopening provisions. Section 404.969 now contains four subsections, the last of which

references 20 C.F.R. §§ 404.987 and 404.988:

(d) Appeals Council’s action. If the Appeals Council decides to review

a decision or dismissal on its own motion, it will mail a notice of review

to all the parties as provided in § 404.973. . . . The Appeals Council’s

decision to review a case is established by its issuance of the notice of

review. If it is unable to decide within the applicable 60-day period

whether to review a decision or dismissal, the Appeals Council may

consider the case to determine if the decision or dismissal should be

reopened pursuant to §§ 404.987 and 404.988.

§ 404.969(d). The SSA’s statement accompanying the final rule amending § 404.969

sheds light on the purpose of the regulation’s reference of the reopening provisions. Its

summary of § 404.969(d) reads in part:

Section[] 404.969(d) . . . also state[s] our policy that when the

Appeals Council is unable to decide whether to review a case on its own

motion within the 60-day period in which it may do so, it may consider

whether the decision should be reopened under . . . [§] 404.987 . . . ,

which authorize[s] the Council to reopen a decision that has become

administratively final on its own initiative or at the request of a party to

the decision, if a condition for reopening stated in [§] 404.988 . . . is

present. Inclusion of this statement in the regulations clarifies our long-

standing policy that the Appeals Council may also reopen final decisions

in accordance with §§ 404.987 [and] 404.988 . . . after the 60 days for

initiating review under [§] 404.969 . . . have expired.

Administrative Review Process; Identification and Referral of Cases for Quality Review

Under the Appeals Council’s Authority to Review Cases on Its Own Motion, 63 Fed.

Reg. 36,560, 36,563 (July 7, 1998) (emphasis added) (citing AR 87–2(11)). Even more

tellingly, the SSA rescinded Acquiescence Ruling 87–2(11) concurrently with the

promulgation of the revised § 404.969. It discussed this decision in its response to a

public comment requesting clarification of the changes to § 404.969(d) relative to the

Butterworth decision:

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 9

[W]e are rescinding [AR 87–2(11)] as obsolete based on the language

that we are including in [§] 404.969(d) . . . to clearly state our policy that

the Appeals Council has authority to reopen, in accordance with the

requirements of §§ 404.987 [and] 404.988 . . . , ALJ decisions that come

before it for possible own-motion review. This language establishes that

a case that has come before the Appeals Council under the provisions of

[§] 404.969, and for which the 60-day period for taking own-motion

review has lapsed, is properly before the Council for the purpose of

considering reopening under the existing regulations on reopening. This

language also establishes that it is our intent that the Appeals Council’s

authority to reopen an ALJ’s decision in accordance with the provisions

of those regulations, which establish conditions for reopening that differ

from the conditions for own-motion review, should not be subject to the

60-day time limit in [§] 404.969 . . . .

Id. at 36,564 (emphasis added).3 The notice rescinding Acquiescence Ruling 87–2(11)

contains similar language:

Under the final rules, the Appeals Council’s authority to reopen and

revise ALJ decisions is not limited by the 60-day period provided in

paragraph[] 404.969(a) . . . .

Because the final rules address the Butterworth court’s concerns

and explain that the Appeals Council’s authority to reopen and revise

ALJ decisions is not subject to the 60-day period provided in

paragraph[] 404.969(a) . . . , we are rescinding Acquiescence Ruling

87–2(11). The final rules and this rescission restore uniformity to our

nationwide system of rules in accordance with our commitment to the

goal of administering our programs through uniform national

standards . . . .

Rescission of Social Security Acquiescence Ruling 87–2(11), 63 Fed. Reg. at 36,727

(emphasis added).

Ferriell attempts to draw support for his interpretation of the Appeals Council’s reopening

authority from the SSA’s statement that “the Appeals Council has authority to reopen . . . ALJ decisions

that come before it for possible own-motion review.” 63 Fed. Reg. at 36,564 (emphasis added). We do

not think that, in context, this statement is akin to the Butterworth court’s requirement that a case be

“properly before” the Appeals Council before it may initiate a reopening. The phrase Ferriell emphasizes

is modified by “for possible own-motion review,” indicating that the ALJ decisions to which this sentence

refers are not those that the Appeals Council has asserted jurisdiction over by initiating direct review, but

rather those which the Appeals Council may be considering for own-motion review. Furthermore, the

sentence Ferriell quotes is followed by a statement that unequivocally rejects the notion that the Appeals

Council’s authority is limited by § 404.969: “[T]he Appeals Council’s authority to reopen an ALJ

decision . . . should not be subject to the 60-day time limit in [§] 404.969 . . . .” Id.

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 10

The plain language of these statements indicates that, under the SSA’s

interpretation of the direct review and reopening procedures, the Appeals Council may

reopen an ALJ’s decision more than sixty days after the decision is issued, as long as it

complies with the requirements of §§ 404.987 and 404.988.4 We see no reason not to

defer to this interpretation of §§ 404.969, 404.987, and 404.988, as it is consistent with

the text of those regulations. Though the reopening provisions are somewhat vague, as

noted above, § 404.969(d) as amended explicitly states that the Appeals Council may

consider reopening a case after sixty days. Furthermore, § 404.969(d) does not seem to

contain any limits on which ALJ decisions might be reopened by the Appeals Council

beyond the general rule that “hearing decision[s] or . . . dismissal[s] of hearing

request[s],” § 404.967, are “subject to review under [§ 404.969],” § 404.969(a); the

regulation refers to “a” decision or dismissal as being eligible for reopening, and the

qualifier “[i]f [the Appeals Council] is unable to decide within the applicable 60-day

period whether to review a decision or dismissal” contemplates the reopening of

decisions that were not subject to direct review.5

Ferriell attempts to cast doubt on the Commissioner’s interpretation with sections from the SSA

Program Operations Manual System (“POMS”) and Hearings, Appeals, and Litigation Law Manual

(“HALLEX”). First, he cites POMS section DI 12020.005, which outlines the procedures under which

the Office of Quality Assurance and Performance Assessment may refer a case to the Appeals Council for

consideration under its own-motion review authority. Soc. Sec. Admin., POMS § DI 12020.005 (2006),

available at http://policy.ssa.gov/poms.nsf/links/0412020005. This section notes that the Appeals Council

must notify the claimant of its action within sixty days of the ALJ decision, id., but this is not surprising;

the section is contained in the part of the manual outlining the Appeals Council’s direct review procedures.

In the sections dealing with the SSA’s reopening procedures, the manual states that the authority to reopen

is vested in “either [t]he component(s) . . . which made the determination[,] or the component(s) . . . which

has the authority to review and, if necessary, revise the determination.” Soc. Sec. Admin., POMS § GN

04001.020 (2008), available at http://policy.ssa.gov/poms.nsf/links/0204001020. For an ALJ decision,

these components are the ALJ and the Appeals Council. Second, Ferriell points out language in HALLEX

section I–2–9–15: “When a case is properly before the Appeals Council and the conditions for reopening

exist, the Appeals Council has the authority to consider the issue of reopening and revising any final

determination or any decision or dismissal action issued by the Appeals Council or by an ALJ.” Soc. Sec.

Admin., HALLEX § I–2–9–15 (2005), available at http://www.ssa.gov/OP_Home/hallex/I-02/I-2-9-

15.html. Admittedly, this section does use the “properly before” language employed in Butterworth, but

it is not necessarily inconsistent with the Commissioner’s interpretation of the reopening provisions in light

of the amendments to § 404.969. Now that § 404.969(d) states that the Appeals Council may consider a

decision for reopening if it cannot decide whether to review the case within sixty days of the ALJ’s

decision, such cases could be considered “properly before” the Appeals Council. Further, we note that,

though internal manuals like POMS and HALLEX might provide some evidence of the SSA’s

interpretations of its regulations, they are properly interpreted in light of remarks promulgated by the SSA

as part of the notice-and-comment procedures resulting in the final rule amending § 404.969.

At least one district court has required the SSA to demonstrate that the Appeals Council was

“unable to decide within the applicable 60-day period whether to review a decision or dismissal,”

§ 404.969(d), before sanctioning an Appeals Council reopening beyond the sixty-day window for direct

review, see Greaux v. Apfel, 137 F. Supp. 2d 1308, 1315 (M.D. Fla. 2001). In Greaux, the memorandum

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 11

Ferriell disputes this reading, arguing that, instead of establishing that the

Appeals Council need not assert jurisdiction over a case in order to later reopen an ALJ’s

decision, § 404.969(d) preserves the Butterworth limitations and merely specifies that

one way for the Appeals Council to assert its jurisdiction is to issue a notice of review

within the sixty-day time limit for direct review. We can discern no basis for this

argument in the text of § 404.969(d). According to that section, “[t]he Appeals

Council’s decision to review a case is established by its issuance of the notice of

review.” § 404.969(d). The next sentence grants the Appeals Council authority to

reopen a case “[i]f it is unable to decide within the applicable 60-day period whether to

review a decision or dismissal.” Id. Thus, under the terms of § 404.969(d), in those

cases that the Appeals Council could not decide to review within sixty days of the ALJ’s

decision—cases that are explicitly eligible for reopening by the Appeals Council— it

would not issue a notice of review. This directly contradicts Ferriell’s argument.

Furthermore, in cases in which the Appeals Council has done nothing but issue a notice

of review before the expiration of the sixty-day period it could simply revise the ALJ’s

decision under direct review, rendering its express reopening authority superfluous.

Finally, even if Ferriell’s reading of the regulation were tenable, his interpretation

conflicts with the SSA’s, which we have already determined is also supported by the text

of § 404.969(d).

Thus, since the SSA’s interpretation is consistent with our reading of the text of

the applicable regulations and not clearly erroneous, we defer to it. See Auer, 519 U.S.

at 461. The Appeals Council may reopen and revise an ALJ’s decision after the sixty-

day window for direct review has expired, as long as the requirements of §§ 404.987 and

404.988 are met. We note this holding is consistent with this court’s decision in Fox v.

referring plaintiff’s case to the Appeals Council for reconsideration was received by the ODAR only thirty-

four days after the ALJ’s decision, but the Appeals Council did not issue a notice of reopening to the

claimant until ninety days after the decision. So, the court remanded the case for a determination of

whether the Appeals Council could have decided to review plaintiff’s decision after it received the referral

but before the sixty-day window for direct review had expired. We need not decide whether the Appeals

Council must make such a showing to justify a reopening under the circumstances of this case. Ferriell

does not raise this argument, and his case was not referred to the Appeals Council until June 27,

2007—sixty-nine days after the ALJ’s April 19, 2007 decision—so it would not have been able to decide

to review the case within sixty days regardless.

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 12

Bowen, as well as the holdings of the few district courts to consider this issue. See

Scheuering ex rel. Scheuering v. Barnhart, No. Civ. 02–418–M, 2003 WL 21731300,

at *3–*4 (D.N.H. July 25, 2003) (unpublished decision); Greaux v. Apfel, 137 F. Supp.

2d 1308, 1315 (M.D. Fla. 2001) (acknowledging that Appeals Council might reopen a

case more than sixty days after an ALJ’s decision on a showing that it was unable to

decide whether to initiate direct review within sixty days). Ferriell does not contend that

the Appeals Council’s action in his case violated the parameters of § 404.988(b): The

case was reopened within four years of the initial determination, and the erroneous date

last insured relied on by the ALJ constituted good cause for reopening as “evidence

[that] clearly shows on its face that an error was made.” 20 C.F.R. § 404.989(a)(3).

Therefore, the Appeals Council was justified in reopening and revising Ferriell’s case,

and its decision should not be vacated as untimely.

II. Due Process

Ferriell next asserts that the proceedings before the Appeals Council denied him

due process. In Flatford v. Chater, 93 F.3d 1296, 1304–05 (6th Cir. 1996), this court

assumed that an applicant for social security disability benefits has a property interest

in those benefits protected by the Fifth Amendment. See also Richardson v. Perales,

402 U.S. 389, 401–02 (1971) (assuming procedural due process protections apply to a

social security disability claim hearing). At a minimum, the Due Process Clause requires

that an individual is afforded notice and an opportunity to be heard before the

deprivation of a protected interest through adjudication. Mullane v. Cent. Hanover Bank

& Trust Co., 339 U.S. 306, 313 (1950). In the context of a social security hearing, due

process requires that the proceedings be “full and fair.” Flatford, 93 F.3d at 1305

(quoting Perales, 402 U.S. at 401–02). To determine whether such a hearing passes

constitutional muster, a court must look to the three factors identified by the Supreme

Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976):

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government’s interest,

No. 09-5597 Ferriell v. Comm’r of Soc. Sec. Page 13

including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail.