Gary v. Barnhart

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 4, 2002
• Docket: 01-30363
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________________________

No. 01-30363 _____________________________________

Frank M. GARY,

Plaintiff-Appellant,

v.

Jo Anne B. BARNHART, Commissioner of Social Security Administration,

Defendant-Appellee.

__________________________________________________

Appeal from the United States District Court For the Western District of Louisiana (99-CV-107) __________________________________________________ April 3, 2002

Before ALDISERT*, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:**

Plaintiff Frank M. Gary appeals from the Social Security

Administration’s (“the Administration’s”) decision denying him

disability benefits under the Social Security Act (“the Act”).

Gary claims that he became disabled on October 30, 1993,

* Circuit Judge of the Third Circuit, sitting by designation. ** Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. when he injured his back in an accident at work. On March 7,

1995, Gary underwent surgery on his back in an attempt to

alleviate some of the pain that it was causing him.

After a hearing on the matter, an administrative law judge

(“ALJ”) denied Gary benefits. The district court affirmed the

Administration’s denial of benefits.

This court reviews the Administration’s denial of social

security disability benefits to determine whether the ALJ applied

the proper legal standards and whether the decision “is supported

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

Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). First, we conclude

that Gary’s claim that there was not substantial evidence to

support the ALJ’s finding that Gary was not disabled before his

March 7, 1995, surgery is meritless. Several of the doctors who

examined Gary during this time concluded that he was not

disabled.

The only issue that Gary raises that merits discussion is

whether there was substantial evidence to support the ALJ’s

finding that Gary was not disabled after his March 7, 1995,

surgery. Dr. Cobb was the only doctor to examine Gary during

this time. Gary argues that Dr. Cobb’s reports dated March 7,

1995, and March 12, 1996, establish a one-year period of

disability required under the Act. On March 7, 1995, Dr. Cobb

noted that the surgery was successfully completed and that Gary

-2- remained hospitalized. In his March 12, 1996, report, Dr. Cobb

described Gary as having “severe limitation of functional

capacity” and being “incapable of minimal activity.”

However, other reports by Dr. Cobb were more optimistic.

For example, on April 17, 1995, Dr. Cobb reported that Gary was

fairly active, had no leg pain, and could begin to discontinue

use of the brace. On August 30, and September 25, 1995, Dr. Cobb

found that Gary was “doing well with his back.” Furthermore,

Dr. Cobb noted on March 6, 1996, that Gary was healing nicely,

that any back pain was probably the result of deconditioning, and

that his fusion was almost solid. Moreover, at a hearing before

the ALJ, Gary testified that during the relevant time period, he

could walk one mile, lived alone, drove a car two to three times

per week, washed dishes, did laundry, cooked, and occasionally

shopped and visited friends. Based on Dr. Cobb’s somewhat

equivocal statements over the span of Gary’s recovery and Gary’s

description of his own life activities, we conclude that there

was substantial evidence to support the ALJ’s finding that Gary

was not disabled after his surgery. See Tamez v. Sullivan, 888

F.2d 334, 336 (5th Cir. 1989); Milam v. Bowen, 782 F.2d 1284,

1287-88 (5th Cir. 1986). Therefore, we affirm the district

court’s order of May 30, 2000, upholding the denial of benefits.

AFFIRMED.

-3-