United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT April 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-50562
Summary Calendar
TONYA SWIST, on behalf of Tony Ray Green, Jr.,
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 Texas
(1:04-CV-326)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tonya Swist, applicant for Supplemental Security Income child
disability benefits on behalf of her minor son, Tony Ray Green, Jr.
(TRG), appeals the district court’s affirmance of the Social
Security Commissioner’s decision that TRG was not disabled within
the meaning of the Social Security Act (the Act).
Swist’s application for benefits was based on TRG’s claimed
inability to engage in substantial gainful activity due to his
asthma. Her original application was denied in October 2001; her
*
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this opinion should not be published and is not precedent except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.
reapplication, in January 2002. After requesting reconsideration,
benefits were again denied in August 2002. Swist then requested a
hearing by an administrative law judge (ALJ).
As of the ALJ hearing, TRG was six-years old. His medical
records showed, beginning at age two, a history of treatment for
shortness of breath, wheezing, and coughing. TRG testified he took
pills and used a breathing machine and inhaler to treat these
asthmatic symptoms. Swist testified TRG’s illness often caused him
to miss school, and, when he did attend, his medications caused him
to be hyper and inattentive. His medical records also showed his
parents allowed his prescriptive medications to lapse on multiple
occasions.
In addition to the above testimony, the ALJ considered reports
from medical consultants and TRG’s teachers. In 2001, TRG’s
preschool teacher rated TRG average in all areas, including:
following oral instructions, comprehension of classroom discussion,
and completion of tasks on time. In 2001 and 2002, two medical
consultants assessed TRG’s functioning on behalf of the
Commissioner. Both concluded his impairments were severe, but did
not meet, medically equal, or functionally equal any Listing of
Impairments (Listing) in the Social Security Regulations.
After reviewing the above reports and testimony, the ALJ
concluded TRG was not disabled within the meaning of the Act. The
ALJ determined TRG’s asthma was severe, but did not medically equal
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any impairment on the Listing. The ALJ concluded TRG had no
limitations in attending and completing tasks, interacting and
relating with others, and caring for self, and had less than marked
limitations in acquiring and using information, moving about and
manipulating objects, and health and physical well-being.
After the ALJ denied benefits, Swist appealed to the Appeals
Council, which denied review in April 2004. She then appealed to
the district court, which affirmed in March 2005.
Our review is limited to determining whether the
Commissioner’s decision is supported by substantial evidence and
whether the proper legal standards were applied. E.g., Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied, 514
U.S. 1120 (1995). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal citations and quotation marks omitted).
“[I]t must be more than a scintilla, but it need not be a
preponderance”. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.
1995) (internal citation and quotation marks omitted). Any
findings of fact made by the Commissioner and supported by
substantial evidence are conclusive. See 42 U.S.C. § 405(g). We
“cannot reweigh the evidence”; instead, our review is limited to
determining whether the record “contains substantial evidence to
support the Commissioner’s decision”. Leggett, 67 F.3d at 564.
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In determining whether a child is disabled under the meaning
of the Act, a three-step evaluation is employed by the
Commissioner: (1) “whether the child is engaged in substantial
gainful activity”; (2) “whether the child has an impairment that is
‘severe’”; and (3) “whether the child's impairment is medically or
functionally equivalent in severity to the impairments listed in
the disability regulations”. Moore v. Barnhart, 413 F.3d 718, 721
(8th Cir. 2005) (paraphrasing 20 C.F.R. § 416.924). For the third
inquiry, the ALJ must consider whether the applicant’s impairment
results in a marked limitation in two domains or an extreme
limitation in one domain for the following: (1) acquiring and
using information; (2) attending and completing tasks; (3)
interacting and relating with others; (4) moving about and
manipulating objects; (5) caring for oneself; and (6) health and
physical well-being. 20 C.F.R. § 416.926a(b)(1). Swist asserts
the ALJ erred in concluding TRG’s impairment did not satisfy this
third inquiry.
Substantial evidence, including reports from two medical
consultants and TRG’s preschool teacher, supports the ALJ’s
findings regarding TRG’s functional capabilities. The ALJ also
found that Swist’s assertions regarding functional limitations and
restrictions of activities of daily living were “exaggerated,
lack[ed] corroboration or substantiation in the medical evidence,
and [were] not credible as to a disabling impairment”. The ALJ
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based his findings on substantial evidence and applied the proper
legal standards.
We do not consider Swist’s claims raised for the first time on
appeal, including whether TRG’s condition “waxes and wanes”
pursuant to Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003), and
whether a treating physician’s statement should have been afforded
greater weight than a teacher’s statement, pursuant to Newton v.
Apfel, 209 F.3d 448 (5th Cir. 2000). See Capps v. Humble Oil &
Refining Co., 536 F.2d 80, 82 (5th Cir. 1976) (“A party cannot
raise a new theory on appeal that was not presented to the court
below.”).
AFFIRMED
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