Barber v. Cmsnr Social Sec ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20967
Summary Calendar
GLENN BARBER,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-2239
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Glenn Barber filed a pro se complaint in the district court
asserting that his rights to due process and equal protection
were violated by the Social Security Administration during
administrative proceedings, which resulted in the denial of his
application for social security disability insurance benefits.
Barber has appealed the magistrate judge’s summary judgment in
favor of the Commissioner.
Barber asserts that he has asserted civil-rights claims
only. “[N]either Bivens [v. Six Unknown Named Agents of Fed.
*
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this opinion should not be published and is not precedent except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.
No. 03-20967
-2-
Bureau of Narcotics, 403 U.S. 388 (1971)], nor the civil rights
statutes provide a valid jurisdictional predicate for this
action.” Affiliated Prof’l Home Health Care Agency v. Shalala,
164 F.3d 282, 286 (5th Cir. 1999). Barber may obtain judicial
review of his constitutional claims under 42 U.S.C. § 405(g).
See Califano v. Sanders, 430 U.S. 99, 109 (1977) (discussing
§ 205(g) of the Social Security Act, codified as amended at 42
U.S.C. § 405(g)).
Barber contends that his right to due process was violated
because the initial agency determination that he was not disabled
was made on the basis of an incomplete record. Because Barber
does not challenge the magistrate judge’s finding that the
Commissioner’s decision was supported by substantial evidence, he
cannot show that his substantial rights were affected. See
Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988); see also
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
(notwithstanding liberal construction of pro se briefs, arguments
must be briefed to be preserved).
Barber contends that his right to equal protection was
violated because Social Security disability insurance claims in
Texas receive disparate treatment in response to local opposition
to the disbursement of government benefits. Because Barber does
not challenge the magistrate judge’s finding that the
Commissioner’s decision was supported by substantial evidence, he
cannot show that he “received treatment different from that
No. 03-20967
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received by similarly situated individuals and that the unequal
treatment stemmed from a discriminatory intent.” Taylor v.
Johnson, 257 F.3d 470, 473 (5th Cir. 2001).
Because this appeal is without arguable merit, it is
DISMISSED AS FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. We caution Barber that the
filing of frivolous appeals will invite the imposition of a
sanction.
APPEAL DISMISSED; SANCTION WARNING ISSUED.