                                                       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that this opinion should not be published and is not precedent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

                                  6
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

                                  7
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

                                  8
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

                                 9
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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