Phyllis Frisby v. Carolyn Colvin, Acting Cmsnr , 632 F. App'x 226 ( 2016 )

Case: 15-30545 Document: 00513359589 Page: 1 Date Filed: 01/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-30545 FILED
Summary Calendar January 28, 2016
Lyle W. Cayce
Clerk
PHYLLIS ANN FRISBY,
Plaintiff - Appellant
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:13-CV-3119
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
Phyllis Ann Frisby (“Frisby”) appeals a decision denying her disability
benefits under Title II of the Social Security Act, 42 U.S.C. § 423. She claims
disability as of November 4, 2010 due to diabetes, high blood pressure,
arthritis, neuropathy, and ruptured Achilles tendons in both ankles. After the
Commissioner denied her application for benefits, she received a hearing in
front of an Administrative Law Judge (“ALJ”). Frisby testified at that hearing
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-30545
that she had been working full-time as an apartment manager until November
2010, when her employer closed down her apartment community. She testified
that she returned to work as an apartment manager for the same company in
September 2011, earning about $2,000 per month. She drew unemployment
benefits in between. She also testified that her employer allowed her to live in
a corporate apartment on the property. Though employed full-time, her
testimony indicated that she was “not being very productive right now.” A co-
worker submitted an affidavit that Frisby had physical difficulty at work and
required assistance from other employees to do her job.
The ALJ evaluated Frisby’s claim using the “five-step sequential
analysis”:
(1) whether the claimant is currently engaged in substantial
gainful activity (whether the claimant is working); (2) whether the
claimant has a severe impairment; (3) whether the claimant's
impairment meets or equals the severity of an impairment listed
in 20 C.F.R., Part 404, Subpart B, Appendix 1; (4) whether the
impairment prevents the claimant from doing past relevant work
(whether the claimant can return to his old job); and (5) whether
the impairment prevents the claimant from doing any other work.
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (citations omitted); see also
20 C.F.R. § 404.1520(a)(4). The ALJ denied her claim at Step One. It found
she had engaged in “substantial gainful activity” since September 2011. See
20 C.F.R. § 404.1572. Specifically, the ALJ found that she had engaged in
“substantial work activity,” see id., since September 2011 when she returned
to work and had worked for “substantial earnings” in that capacity, see
2 C.F.R. § 404.1574(a)(1). The ALJ also noted the inconsistency in Frisby’s
claim for disability benefits and her receipt of unemployment benefits, which
requires an individual to hold herself out as being “ready, willing, and able to
work.” See Thibodeaux v. Astrue, 324 Fed. Appx. 440, 443 (5th Cir. 2009);
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Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994). The ALJ denied her
claim because the evidence indicated Frisby’s condition did not prevent her
from engaging in substantial gainful activity for the required continuous
twelve-month period. See 42 U.S.C. § 423(d)(1)(A).
The Appeals Council denied Frisby’s request for review, rendering the
ALJ’s decision as the Commissioner’s final administrative action. She further
appealed to the district court pursuant to 42 U.S.C. § 405(g), which affirmed
the ALJ’s decision for the Commissioner. She now appeals to this Court.
Our review of the Commissioner’s decision is limited to two
inquiries: (1) whether the decision is supported by substantial
evidence on the record as a whole, and (2) whether the
Commissioner applied the proper legal standard. Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It is more than a mere
scintilla and less than a preponderance. In applying the
substantial evidence standard, the court scrutinizes the record to
determine whether such evidence is present, but may not reweigh
the evidence or substitute its judgment for the Commissioner's.
Conflicts of evidence are for the Commissioner, not the courts, to
resolve. If the Commissioner's fact findings are supported by
substantial evidence, they are conclusive.
Perez, 415 F.3d at 461 (internal citations and quotations omitted). Applying
these standards, we affirm the ALJ’s decision.
Frisby’s own testimony indicates that she received substantial earnings
after she returned to work in September 2011. See 20 C.F.R. § 404.1574(b)(2)
(setting the substantial earnings level). Generally, working for substantial
earnings indicates an ability to do substantial gainful activity absent a
contrary showing by the claimant. See id. § 404.1574(a)(1); id. § 404.1574(b);
Copeland v. Colvin, 771 F.3d 920, 924 (5th Cir. 2014); White v. Heckler,
740 F.2d 390, 394 (5th Cir. 1984). To be found disabled, an individual must be
unable to engage in substantial gainful activity by reason of a medical
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impairment for a continuous period of at least twelve months. See 42 U.S.C.
§ 423(d)(1)(A). Since Frisby returned to substantial gainful activity in
September 2011, less than twelve months after the alleged onset of her
disability in November 2010, she is not disabled and cannot receive benefits.
See Barnhart v. Walton, 535 U.S. 212, 217-22, 122 S. Ct. 1265, 1269-72 (2002).
Frisby does not contest this on appeal. Instead, she argues the ALJ erred
by failing to address evidence that she returned to work under special
conditions. These are that she was not supervised at work, lived onsite in a
corporate apartment, and received assistance from other employees. Work
done under special conditions may not support a finding that a claimant is able
to do substantial gainful activity. See 20 C.F.R. § 404.1573(c). Frisby’s
argument is foreclosed by our analogous decision in Ellis v. Bowen, where we
held “the fact that a person works in a sheltered environment or at some other
subsidized job does not alone establish disability if the claimant receives
substantial earnings.” 820 F.2d 682, 684 (5th Cir. 1987). Thus, even if Frisby
could establish that she worked under special conditions, disability payments
are precluded by the ALJ’s finding that she engaged in substantial gainful
activity by means of her substantial earnings. Id. Moreover, even if the
evidence supporting Frisby’s claim of special conditions is true, it falls short of
the burden she must meet because she has not demonstrated her employer
permitted her to work at a lower level of productivity or consented to, or was
even aware of, the alleged accommodations. See 20 C.F.R. § 404.1573(c).
For these reasons, the judgment is AFFIRMED. 1
1 We need not address Frisby’s argument that the district court affirmed the ALJ’s
decision on grounds different from those relied upon by the ALJ. See Randall v. Astrue,
570 F.3d 651, 663 (5th Cir. 2009) (“It is well established . . . that even though the case comes
to us on appeal from a final judgment of the district court, we focus our review not on the
district court's decisional process but on the ALJ's.”).
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