Viator v. Barnhardt

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 9, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 05-30391
Summary Calendar

DAVID J. VIATOR,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court for
the Western District of Louisiana, Lafayette
(USDC No. 6:04-CV-813)
_________________________________________________________

Before REAVLEY, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PER CURIAM:*

The judgment of the district court is affirmed for these reasons:

1. The Administrative Law Judge considered Mr. Viator’s continuing

employment as some evidence of his ability to return to his past work, not

*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 as present substantial gainful activity of itself to meet the first step in the

evaluation process.

2. There is evidence to support the findings. No medical professional has said

that Viator is disabled or cannot return to his prior work. His time walking

is not critical for that employment, but the doctor’s opinion that he could

stand for 30 minutes is not inconsistent with a finding that he could stand

for up to six hours in an eight-hour day, allowing for rest between the

periods of standing. There is evidence that Viator’s physical and mental

problems are adequately controlled by medication.

3. The contention about improper use of the vocational expert is unavailing,

because the record supported the findings and the expert only corroborated

that.

AFFIRMED.

2