United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 18, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-10505
Summary Calendar
ANNE JOSEPH,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas, San Angelo Division
No. 06:04-CV-0065-C
Before DeMOSS, STEWART and PRADO, Circuit Judges.
Per Curiam:*
Plaintiff-appellant Anne Joseph (“Joseph”), appearing pro
se, appeals from a district court’s order and judgment in favor
of the Commissioner of Social Security’s (“Commissioner”)
decision granting Joseph a closed period of disability. We
affirm the district court’s order and judgment for the reasons
that follow.
*
Pursuant to 5TH CIRCUIT 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Anne Joseph filed an application for disability insurance
benefits on April 11, 2001. In the application, Joseph alleged
that she began having back, neck, and shoulder problems on
October 12, 1999, following an automobile accident. Joseph
further alleged that she had been unable to work since March 24,
2000, after a series of surgeries to address the accident-related
injuries. Joseph’s application for disability insurance benefits
was denied initially and denied again upon reconsideration.
Joseph then requested and was granted a hearing before an
Administrative Law Judge (“ALJ”).
On September 27, 2002, a hearing took place before an ALJ to
adjudicate whether Joseph qualified for disability insurance
benefits. At the hearing, Joseph testified and presented medical
evidence. The ALJ, after considering the testimony and reviewing
the extensive medical record, concluded that Joseph was indeed
disabled beginning March 24, 2000, “due to symptoms commensurate
with surgical recovery.” However, the ALJ also found that
subsequent to June 12, 2001, Joseph experienced a medical
improvement related to her ability to work, and thus was no
longer disabled. Therefore, the ALJ rendered a partially
favorable decision to Joseph, granting a “closed period of
disability” and conferring disability insurance benefits for the
period commencing March 24, 2000, and ending June 12, 2001.
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Joseph appealed the ALJ’s decision to the Appeals Council,
contending that her disability had not ended in June 2001 but
rather was ongoing. The Appeals Council found no basis for
modifying the decision. Following the decision by the Appeals
Council, Joseph filed suit in district court. The district
court, after referring the matter to a magistrate for
recommendation, concluded that Joseph’s complaint contained no
merit. The district court dismissed the suit and granted
judgment to the Commissioner. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction over appeals from all final
decisions of United States district courts. 28 U.S.C. § 1291.
Appellate review of decisions by the Commissioner of Social
Security is limited to two inquiries: (1) whether the proper
legal standard was applied; and (2) whether substantial evidence
supports the decision. Waters v. Barnhart, 276 F.3d 716, 718
(5th Cir. 2002) (citing Estate of Morris v. Shalala, 207 F.3d
744, 745 (5th Cir. 2000)). Substantial evidence requires “more
than a mere scintilla” of evidence. Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229, (1938)). Substantial evidence “means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. This court may not re-weigh the
evidence in the record or substitute our judgment for that of the
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Commissioner. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.
2000).
III. DISCUSSION
Joseph raises a single point of error on appeal: that
substantial evidence did not support the ALJ’s finding of non-
disability as of June 12, 2001. Thus, we consider whether
substantial evidence supports the conclusion that Joseph was no
longer entitled to disability benefits on the termination date
selected by the ALJ. See Waters, 276 F.3d at 718 (approving
appellate review of substantial evidence in Social Security
disability cases).
A. Termination of Benefits Standards
When an ALJ grants disability insurance benefits to an
applicant for a closed period of disability, two decision-making
processes occur. See Waters, 276 F.3d at 719 (describing the
differences between a “typical disability case” and a “closed
period case”). First, the ALJ finds the applicant disabled and
grants benefits. See id. Second, the ALJ engages in the
termination decision-making process to find that the disability
ended at some date prior to the hearing. Id.
Under this latter process, disability benefits may be
terminated if there is substantial evidence demonstrating that:
(A) there has been any medical improvement in the
individual’s impairment or combination of impairments
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(other than medical improvement which is not related to
the individual’s ability to work), and
(B) the individual is now able to engage in substantial
gainful activity.
42 U.S.C. § 423(f)(1). The burden rests on the government “to
show that the claimant’s disability has ended as of the cessation
date.” Waters, 276 F.3d at 717. Consequently, benefits may be
terminated if the Commissioner proves (1) that there has been a
medical improvement related to the ability to work and (2) that
the beneficiary can engage in substantial gainful activity. See
42 U.S.C. § 423(f); 20 C.F.R. § 404.1594(a).
The Social Security implementing regulations define a
medical improvement as a “decrease in the medical severity of
[the] impairment(s) which was present at the time of the most
recent favorable medical decision” of disability. 20 C.F.R.
§ 404.1594(b)(1). The determination of “a decrease in medical
severity must be based on changes (improvement) in the symptoms,
signs and/or laboratory findings associated with [the]
impairment(s).” Id. Additionally, a medical improvement is
related to the ability to do work if the improvement creates an
“increase in [the] functional capacity to do basic work
activities.” Id. § 404.1594(b)(3). Finally, this court defines
substantial gainful activity as “work activity involving
significant physical or mental abilities for pay or profit.”
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The ability
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to engage in substantial gainful activity is determined through
an “objective assessment of [the] functional capacity to do basic
work activities” and a consideration of vocational factors. 20
C.F.R. § 404.1594(b)(5).
B. Substantial Evidence Supports a Finding of Medical
Improvement Related to the Ability to do Work
In the instant case, the ALJ found that Joseph experienced a
medical improvement related to her ability to do work as of June
12, 2001. In particular, the ALJ found that the “medical record
documents good recovery from surgery and improvement in both
shoulder and neck symptoms, without evidence of neurological
deficits.” Additionally, the ALJ found that the medical record
contained no objective evidence subsequent to June 12, 2001,
substantiating “recurrent or worsening symptoms.” The ALJ
concluded that Joseph had regained the capacity to perform light
work, subject to certain restrictions, as of the benefits
termination date.
A review of the medical record reveals that the ALJ’s
assessment was apparently based on a surgery follow-up note dated
June 12, 2001, written by Dr. Wilkinson, the physician who
performed surgery on Joseph in March and June of 2000. In the
note, Dr. Wilkinson states that Joseph is “doing well” and
describes her range of movement as “surprisingly good.” Dr.
Wilkinson further explains that Joseph can engage in “almost
normal activity.” However, the note also cautions about
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repetitive movements, especially with respect to lifting motions.
From this follow-up note, the ALJ concluded that a medical
improvement had occurred and that Joseph could return to work
subject to the restrictions described by Dr. Wilkinson.
First, we agree with Joseph’s contention that Dr.
Wilkinson’s use of the phrase “[i]n general she is doing well”
does not constitute evidence of an improvement in symptoms or
signs. This is because Dr. Wilkinson used identical or
equivalent language in follow-up notes written during the period
of disability identified by the ALJ. In fact, Dr. Wilkinson
apparently began every follow-up note with a generic statement
that Joseph was doing “well” or “better.” In light of the fact
that the same phrase appeared in the last follow-up note written
during the period of disability, the language shows at best a
continuation of the same signs or symptoms, not an improvement as
required under the implementing regulations. See 20 C.F.R.
§ 404.1594(b)(1).
Other language appearing in the June 12, 2001 follow-up
note, however, provides more than a scintilla of evidence in
support of a medical improvement related to the ability to do
work. As a whole, the follow-up note documents the considerable
extent of recovery by Joseph and could reasonably be taken as
evidence of a medical improvement. Dr. Wilkinson describes
Joseph as having a “surprisingly good” range of movement and
engaging in “almost normal activity.” Such openly positive
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language does not appear in prior follow-up notes written by Dr.
Wilkinson and represents a departure from the more cautious
statements in previous evaluations. A reasonable mind could
accept the description of Joseph’s range of motion and activity
level as depicting improvements in the signs or symptoms
associated with a surgical recovery. Moreover, Dr. Wilkinson’s
evaluation, especially of Joseph’s ability to do near normal
activity, could reasonably indicate an improvement in Joseph’s
capacity to perform light work. Therefore, we conclude that
substantial evidence supports the finding that Joseph experienced
a medical improvement related to her ability to work as of June
12, 2001.
Notwithstanding the follow-up note, Joseph contends that a
prescription note written by Dr. Wilkinson directing Joseph to
remain off work conclusively shows that she was still disabled.
The prescription, also written on June 12, 2001, reads:
“[c]ontinue off work status pending next appt. on 10-9-01 9am.”
First, as correctly noted by the Commissioner, this evidence was
not before the ALJ at the time the ALJ rendered its decision.
Nonetheless, even if the prescription note had been before the
ALJ, under this court’s precedent Dr. Wilkinson’s opinion on
Joseph’s ability to work would not have been entitled to any
special weight. See Frank v. Barnhart, 326 F.3d 618, 620 (5th
Cir. 2003); 20 C.F.R. § 404.1527(e)(3). A treating physician’s
medical opinion is entitled to special weight, but the
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determination of any legal conclusions (such as the ability to
work) are reserved to the Commissioner. Frank, 326 F.3d at 620;
20 C.F.R. § 404.1527(e)(1). The presence of this particular
prescription note does not diminish the substantial evidence
supporting a finding of non-disability, nor is this prescription
note determinative in the ALJ’s disability inquiry.
C. Substantial Evidence Supports a Finding of the Ability to
Engage in Substantial Gainful Employment
Finally, the ALJ found that Joseph could engage in
substantial gainful employment because she could return to her
past relevant work as a Chinese linguist. See 20 C.F.R.
§ 404.1594(f)(7) (“[The Commissioner will] consider whether you
can still do work you have done in the past. If you can do such
work, disability will be found to have ended.”). At the hearing
before the ALJ, Joseph’s employment record established that she
had previously worked as a Chinese linguist. Joseph’s linguistic
work qualified as “past relevant work” under the applicable
regulatory definition. See 20 C.F.R. § 404.1560(b)(1). A
vocational expert testified that the restrictions recommended by
Dr. Wilkinson did not preclude Joseph from working as a Chinese
linguist. Based on this testimony, the ALJ concluded that Joseph
possessed sufficient residual functional capacity to undertake
light or sedentary work, including past relevant work as a
Chinese linguist. We find no error in the ALJ’s reasoning and
agree that substantial evidence supports the finding that Joseph
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could engage in substantial gainful employment as of June 12,
2001.
IV. CONCLUSION
We hold that substantial evidence supports the ALJ’s finding
that Joseph was no longer disabled as of June 12, 2001. The
district court’s order and judgment are AFFIRMED.
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