* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60787

Summary Calendar

BERTHA M SMITH

Plaintiff-Appellant

v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY

ADMINISTRATION

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:06-CV-207

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Bertha Smith’s claims for Supplemental Security Income (“SSI”) and

Social Security Disability Insurance Benefits (“DIB”) were denied by the

Commissioner of the Social Security Administration (“Commissioner”). Smith

appealed and the district court affirmed the denial of benefits. For the reasons

stated below, we affirm the district court. 

United States Court of Appeals

Fifth Circuit

F I L E D

May 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-60787

2

I. FACTS AND PROCEEDINGS

Smith filed for SSI and DIB based on her history of coronary artery

disease, unstable angina, hypertension and obesity. She is a high-school

graduate and has previously worked as a drill press operator, a welder, a

cashier, a city bus driver and a school bus driver. 

The district court summarized the procedural history in its order affirming

the Commissioner’s decision to deny Smith’s claims. 

Smith applied for [SSI] on September 30, 2001, and for [DIB]

under Title II of the Act [42 U.S.C. § 405] on July 2, 2002. Her

complaint alleges onset of disability on April 15, 2001. Her

applications were denied initially and upon reconsideration [Smith]

requested a hearing, and on July 23, 2002, the requested hearing

was convened before the Administrative Law Judge [“ALJ”]

Sheridan P. Hunt, Jr. [Smith] was represented by counsel and

testified before ALJ Hunt. A partially favorable decision was

rendered on August 25, 2003, in which he found [Smith] disabled as

of May 10, 2003, but not prior to that date. A review was requested

of ALJ Hunt’s decision and granted by the Appeals Council, which

vacated the ALJ’s decision and remanded the case for a new

hearing. Based on the instructions from the Appeals Council,

additional evidence was taken and a hearing held June 7, 2005.

Present at the hearing was [Smith], her counsel, and Ronald Smith,

a vocational expert. On October 26, 2005 the ALJ issued his second

decision in which he found [Smith] was not disabled at any time

through the date of the decision.

The decision of ALJ Hunt employed the five steps sequential

evaluation process specified in 20 [C.F.R. § 404].1520(b)-(g). The

opinion found that [Smith] had residual functional capacity for a

range of “light” work that allowed her to perform some of her past

relevant work, as well as other jobs that existin significant numbers

in the national economy. A subsequent review by the Appeals

Council was denied, making the decision of the Commissioner final.

Smith appealed the Commissioner’s decision to the district court. Magistrate

Judge Michael Parker entered a Report and Recommendation in which he found

that the decision of the Commissioner was supported by substantial evidence

and was in accord with the relevantlegal standards. He recommended affirming
No. 07-60787

3

the Commissioner’s decision. Smith filed objections to the Report and

Recommendation. The district court adopted the Report and Recommendation,

affirmed the Commissioner and dismissed Smith’s complaint on August 9, 2007.

Smith appealed to this court. 

II. STANDARD OF REVIEW

This court’s “review of the Commissioner’s decision is limited to

determining whether that decision is supported by substantial evidence and

whether the Commissioner has employed the correct legal standards.” Kinash

v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). “Substantial evidence is such

relevant evidence as a reasonable mind might accept to support a conclusion.

Itis more than a mere scintilla and less than a preponderance. . . . In our review,

we do not reweigh the evidence nor do we substitute our judgmentfor that ofthe

Secretary.” Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (footnotes and

internal quotations omitted). 

III. ANALYSIS 

Smith makes two arguments on appeal. First, she argues that the

Commissioner applied the incorrectlegal standard when he did not consider the

fifth factor in the five-step process for determining disability under 42 U.S.C. §

423(d)(1)(A). Second, Smith argues that the Commissioner’s finding that she

was capable of performing light work was not supported by substantial evidence.

A. The Commissioner’s application of the legal standards

The five-step legal standard for “determining whether or not a claimant

is capable of performing substantial gainful activity” is set out in 20 C.F.R. §

404.1520(b)-(g). Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). The steps

are:

1. An individual who is working and engaging in substantial

gainful activity will not be found disabled regardless of the medical

findings.
No. 07-60787

1 Smith also raises the legal argument that the Commissioner did not grant due

deference to the statements of her treating physician. This argument was raised in three

sentences on the second-to-last page of Smith’s appellate brief and was not supported by any

citation to legal authorities. We therefore hold that she has waived it. Riecke v. Barnhart, 184

F. App’x 454, 456 n.3 (5th Cir. 2006) (unpublished) (“[I]ssues inadequately briefed are deemed

waived.”)

4

2. An individual who does not have a “severe impairment” will

not be found to be disabled.

3. An individual who meets or equals a listed impairment in

Appendix 1 of the regulations will be considered disabled without

consideration of vocational factors.

4. If an individual is capable of performing the work he has

done in the past, a finding of “not disabled” must be made.

5. If an individual’s impairment precludes him from

performing his past work, other factors including age, education,

past work experience, and residual functional capacity must be

considered to determine if other work can be performed.

Id. Smith bears the burden of proving the first four steps. Watson v. Barnhart,

288 F.3d 212, 216 (5th Cir. 2002). After that, the burden shifts to the

Commissioner to prove the fifth step. Id.

Smith complains that the Commissioner erred by not proving the fifth

step. This complaint is without merit. The Commissioner found that Smith’s

medical conditions did not meet or equal a listed impairment (step three), and

that Smith was capable of performing some of her past relevant work, including

her work as a bus driver (step four). The negative result at step four required

a finding of “not disabled.” Harrell, 862 F.2d at 475. “A finding that a claimant

is disabled or not disabled at any point in the five-step process is conclusive and

terminates the Secretary’s analysis.” Id. The Commissioner did not err when

he terminated his analysis without reaching step five.1
No. 07-60787

5

B. The evidence supporting the Commissioner’s decision

Smith argues that the Commission’s decision was not supported by

substantial evidence on two issues: whether her medical conditions met or

equaled a listed impairment, and whether she was capable of performing light

work. After reviewing the record, we conclude that substantial evidence

supported the Commissioner’s determinations on both issues. 

1) Listed impairment

Smith bore the burden of proving that her medical conditions met or

equaled a listed impairment. Watson, 288 F.3d at 216. The Magistrate’s Report

and Recommendation, adopted by the district court, noted that Smith’s

argument that her medical conditions equaled a listed impairment failed

because she did not point out which impairment her conditions might equal. On

appeal, Smith again recites a list of her medical conditions without drawing a

connection between her conditions and the listed impairments. We affirm the

district court’s finding on this issue. 

2) Ability to perform past work

Smith bore the burden of proving that her medical conditions prevented

her from performing her past work. Id. Smith argues that “there was no

medical testimony” supporting the Commissioner’s conclusion that she was

capable of performing light work. Smith admits, however that three different

doctors performed Residual Functional Capacity (“RFC”) assessments of her.

These assessments were based on Smith’s medical records, and all three

assessments concluded that she was capable of lifting at least ten pounds

frequently, standing or walking between two and six hours per day, and sitting

for six hours per day. The vocational expert who testified at Smith’s hearing

before the ALJ stated that her previous jobs as a bus driver and a cashier were

performed atthe “light”level, which by definition means that they required only

light lifting (up to ten pounds frequently and twenty pounds occasionally) and
No. 07-60787

6

walking, standing, or sitting while operating arm or leg controls. The district

court concluded thatthis evidence supported the Commissioner’s determination

that Smith was capable of performing some of her past relevant work, and we

agree. 

IV. CONCLUSION

The judgment of the district court is AFFIRMED.