Viator v. Barnhardt

*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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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

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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.

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