UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-30961 Summary Calendar

IRENE M. BEASLEY, SSN XXX-XX-XXXX,

Plaintiff-Appellant,

VERSUS

SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court For the Western District of Louisiana (92-CV-1480) March 29, 1996

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

BACKGROUND

Irene M. Beasley filed an application for Social Security

disability benefits on May 7, 1990, alleging disability since May

* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

15, 1987. The state agency and the Social Security Administration

denied her claim. Beasley requested and received a hearing before

an administrative law judge (ALJ). The ALJ issued a decision

denying benefits on July 22, 1991. The ALJ found that Beasley was

not disabled within the meaning of the Act prior to June 30, 1989,

the date her Title II insured status expired. Beasley requested

review of the ALJ's decision by the Appeals Council on the grounds

that the ALJ did not consider evidence that her insured status

continued after June 30, 1989. The Appeals Council denied

Beasley's request for review, stating that it had considered the

evidence in question and that the evidence was not sufficient to

rebut the presumption established by the earnings record that she

had not received wages after 1984.

Beasley filed a complaint in the district court, alleging that

the ALJ's finding that her insured status ended on June 30, 1989,

was contrary to the law and the evidence in that the ALJ ignored

credible evidence that she had continued to work until the spring

of 1987. Beasley and the Secretary filed cross-motions for summary

judgment. Beasley argued that the ALJ had improperly failed to

evaluate and give credence to her evidence that she had continued

to work through 1987 and had thus extended her insured status. The

Secretary argued that the Appeals Council had considered the

evidence and found it insufficient. The magistrate judge

recommended that Beasley's motion be denied and that her complaint

be dismissed with prejudice, holding that substantial evidence

supported the ALJ's finding that her insured status expired on June

30, 1989. Beasley filed objections, pointing out that the ALJ had

failed to even consider her evidence of employment. The district

court adopted the recommendation of the magistrate judge, denied

Beasley's motion, and dismissed her complaint.

The evidence in question consists of three affidavits by

Beasley, her daughter, and her husband, in which they asserted that

Beasley worked for a Mrs. Paula Kirk as a cook/maid from 1985 until

the spring of 1987 for $25 a day, three days a week at first, and

then two days a week towards the end. Beasley's daughter asserted

that she would sometimes accompany Beasley and also work for Mrs.

Kirk. Beasley's husband asserted that he would frequently drive

Beasley to work at Mrs. Kirk's.

Beasley testified regarding her employment in the years of

1985 through 1987 at the hearing before the ALJ. She testified

that she worked for Mrs. Kirk (Curt in the transcript), and a

lawyer named Madsen (Matterson in the transcript). These employers

were listed in Beasley’s original application for benefits. She

testified that Social Security was supposed to have been withheld

from her pay. The ALJ, noting the issue of the expiration of

Beasley's insured status on June 30, 1989, according to the

Secretary's records of her wages, held open the record for 30 days

to take additional evidence of Beasley's employment. The record

was reopened on July 22, 1991, for admission of the affidavits.

OPINION

Beasley argues that the ALJ failed to evaluate and give

credence to the evidence that she continued to work through 1987,

thus extending her insured status, rendering the decision invalid

and unsupported by substantial evidence.

This Court's review of the Commissioner's decision is limited

to two issues: 1) did the Commissioner apply the proper legal

standards, and 2) is the Commissioner's decision supported by

substantial evidence on the record as a whole. Anthony v.

Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). If the Commissioner's

findings are supported by substantial evidence, they are conclusive

and must be affirmed. 42 U.S.C. § 405(g); Richardson v. Perales,

402 U.S. 389, 390 (1971). Substantial evidence is that which is

relevant and sufficient for a reasonable mind to accept as adequate

to support a conclusion. It must be more than a scintilla, but it

need not be a preponderance. Perales, 402 U.S. at 401. "This

Court may not reweigh the evidence or try the issues de novo.

Rather, conflicts in the evidence are for the Secretary to

resolve." Anthony, 954 F.2d at 295 (citations omitted).

To be eligible for disability insurance benefits, an applicant

must be "insured for disability insurance benefits." 42 U.S.C. §§

423(a)(1)(A) & (c)(1); 20 C.F.R. § 404.130; Demandre v. Califano,

591 F.2d 1088, 1090 (5th Cir.), cert. denied, 444 U.S. 952 (1979).

A claimant is eligible for benefits only if the onset of disability

began on or before the date the claimant was last insured. Ivy v.

Sullivan, 898 F.2d 1045, 1048 (5th Cir. 1990). The claimant bears

the burden of establishing a disabling condition before the

expiration of his insured status. Id.

According to the Secretary's records of Beasley's wages, the

date that Beasley was last insured was June 30, 1989. The

Secretary’s records showed no wages after 1984.

The Social Security Act specifically addresses the evidentiary

weight given to the Secretary's record. The absence of entries of

wages in the records serves as evidence that no wages were paid.

42 U.S.C. § 405(c)(3); 20 C.F.R. § 404.803(a); Breeden v.

Weinberger, 493 F.2d 1002, 1005 (4th Cir. 1974). The records are

open to revision for a period of three years, three months, and

fifteen days, after which period the absence of an entry is

presumptive evidence that no wages were paid. 42 U.S.C. §§

405(c)(1)(B) & (c)(4)(B); 20 C.F.R. § 404.803(c)(2); Breeden, 493 F.2d at 1005. This presumption is not conclusive and may be

rebutted upon the production of contrary evidence by the claimant.

However, the absence of a wage entry is still an evidentiary

factor, which may be considered as proof that the claimant did not

receive wages for that year, and must be weighed against the

claimant's evidence that he did receive wages, applying the usual

tests of credibility. Kephart v. Richardson, 505 F.2d 1085, 1089

(3d Cir. 1974); Duenas v. Shalala, 34 F.3d 719, 722-23 (9th Cir.

1994), cert. denied, 115 S. Ct. 1430 (1995).

Beasley is correct that the ALJ's decision does not mention

either her testimony at the hearing, or the affidavits submitted

after the hearing regarding the issue of her alleged employment

from 1985 to 1987. The decision does not contain any determination

regarding the credibility of Beasley's claims of continued

employment. The Appeals Council suggested that Beasley's "self-

serving statements" were not credible evidence.1 However, such

testimony cannot be disregarded, and neither the statute nor the

regulations require independent corroboration by the types of

objective evidence suggested by the Secretary, such as tax returns.

Kephart, 505 F.2d at 1089 (Claimant's "testimony is evidence which

cannot be disregarded, whether corroborated or not."). The ALJ was

not required to believe Beasley's evidence; however, he was

required to consider it and explain why he found it not credible,

if that is in fact what he did. See Singer v. Weinberger, 513 F.2d 176, 178 (9th Cir. 1975)(ALJ required to consider claimant's

evidence of employment).

The Secretary argues that Beasley's evidence was not as

substantial as the evidence produced by claimants in other cases

Beasley also correctly points out that the Appeals Council erroneously implied that a presumption of no wages existed for 1987. Beasley filed her application for benefits before the time limitation expired for 1987, which the Secretary acknowledges.

which were reversed and remanded. However, that argument begs that

question. If the ALJ had considered Beasley's evidence and

believed it, it would be sufficient. As Beasley correctly noted in

her objections, the magistrate judge misconstrued the ALJ's finding

that there was "no evidence of work activity since the claimant's

alleged onset date." That finding pertained to the date of onset

of disability. Beasley obviously does not dispute that she did not

work past her onset date in May of 1987. She does dispute the

absence of wage entries in the Secretary's records for wages she

contends she earned from 1985 through May of 1987. The administra-

tive record is devoid of a factual finding by the ALJ regarding the

credibility of Beasley's claimed employment from 1985 to 1987, or

any evaluation by the ALJ of the sufficiency, or lack thereof, of

the evidence she presented.

The judgment is reversed and the case is remanded to the

district court with instructions to remand it to the Secretary for

further proceedings consistent with the views expressed herein.

Nothing herein should be construed to express any opinion as to the

credibility or weight of Beasley's evidence.

REVERSED and REMANDED.