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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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, 

, 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 

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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                                No. 15-30545
Barrett v. Shalala, 

, 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.

(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 

Copeland v. Colvin, 

, 924 (5th Cir. 2014); White v. Heckler,

, 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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                                       No. 15-30545
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, 

, 217-22, 

, 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.” 

, 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. 

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,

, 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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