IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            June 6, 2008

                                     No. 07-51161                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DENISE E SMITH

                                                  Plaintiff-Appellant
v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:06-cv-439


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Denise Smith (“Smith”) appeals the district court’s
approval of the decision of an administrative law judge (“ALJ”) that she is
ineligible to receive supplemental security income (“SSI”) under the Social
Security Act, 42 U.S.C. §§ 1381-1381c. For the following reasons, we AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51161

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Smith filed applications for SSI and disability insurance benefits (“DIB”)
on October 23, 2002. She claimed that she suffered from various ailments,
including Hepatitis C, acute stress, panic disorder, and bipolar disorder. In
August 2004, an ALJ ruled that Smith was ineligible to receive either type of
disability benefit. Smith appealed, and based on errors not germane to this
appeal, the Appeals Council of the Commissioner of the Social Security
Administration (the “Commissioner”) remanded her application for SSI benefits
for another hearing and decision. However, the Appeals Council declined to
review her application for DIB benefits, and Smith did not appeal that denial.
As such, on remand, the ALJ considered only her request for SSI benefits, and
her request for DIB benefits is not subject to this appeal.
      On remand, the ALJ issued a new ruling, again finding that Smith was
ineligible for SSI benefits. Specifically, the ALJ found that although Smith
suffered from bipolar disorder, anxiety disorder, a personality disorder, and
polysubstance abuse, her substance abuse was a “contributing factor material
to the determination of disability.” Therefore, based on her substance abuse, the
ALJ concluded that Smith was not entitled to receive SSI benefits. Smith
appealed, and the Appeals Council declined to review the ALJ’s decision, making
the ALJ’s decision the final decision of the Commissioner. Smith then filed suit
in federal court, seeking a review of the Commissioner’s final decision that she
is ineligible for SSI benefits. The district court referred the case to a magistrate
judge, who filed a Report and Recommendation detailing the relevant medical
evidence and recommending that the court affirm the Commissioner’s decision.
After Smith filed objections to the Report and Recommendation, the district
court conducted a de novo review of the record and agreed with the magistrate
judge’s Report and Recommendation. Therefore, the district court issued a final
order affirming the Commissioner’s decision. Smith appeals to this court. We


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have jurisdiction over the district court’s final judgment pursuant to 28 U.S.C.
§ 1291.
                        II. STANDARD OF REVIEW
      Our review of the Commissioner’s final decision that a claimant is
ineligible to receive disability benefits is limited to two inquiries: whether
substantial evidence supports the ALJ’s decision, and whether the ALJ applied
the proper legal standard. See Waters v. Barnhart, 

, 718 (5th Cir.
2002). “Substantial evidence is such relevant evidence as a reasonable mind
might accept to support a conclusion.” Greenspan v. Shalala, 

, 236
(5th Cir. 1994) (citing Richardson v. Perales, 

, 401 (1971)). It is
“more than a mere scintilla and less than a preponderance.”     Ripley v. Chater,

, 555 (5th Cir. 1995) (citing Spellman v. Shalala, 

, 360 (5th
Cir. 1993)). Moreover, we may not reweigh the evidence or substitute our own
judgment for that of the Commissioner. See Harris v. Apfel, 

, 417
(5th Cir. 2000).
                              III. DISCUSSION
      To be entitled to receive SSI benefits, a claimant must show that she has
an “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). The ALJ must undertake a five-step evaluation process
to determine if a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4), 416.920.
The five steps entail an inquiry into whether (1) the claimant is presently
performing substantial gainful activity, (2) the claimant has a severe
impairment, (3) the impairment meets or equals a listed impairment in
Appendix 1 of the regulations, (4) the impairment prevents the claimant from
doing past relevant work, and (5) the impairment prevents the claimant from
performing any other substantial gainful activity. 

see also

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                                       No. 07-51161

Boyd v. Apfel, 

, 704-05 (5th Cir. 2001). The burden is on the
claimant for the first four steps and the Commissioner for the last step. See
Muse v. Sullivan, 

, 789 (5th Cir. 1991). “A finding that a claimant
is disabled or is not disabled at any point in the five-step review is conclusive
and terminates the analysis.” 

(internal quotation marks
omitted).
       If the ALJ determines that a claimant is disabled but there is medical
evidence in the record of drug addiction or alcoholism, the ALJ must determine
whether that substance abuse is a “contributing factor material to the
determination of disability.” 42 U.S.C. § 1382c(a)(3)(J); 20 C.F.R. § 404.1535(a).
If it is, then the claimant is not considered disabled and is ineligible to receive
benefits.    42 U.S.C. § 1382c(a)(3)(J).           If the ALJ finds that a claimant’s
“remaining limitations would not be disabling, [the ALJ] will find that [the
claimant’s] drug addiction or alcoholism is a contributing factor material to the
determination of disability.” 20 C.F.R. § 404.1535(b)(2)(i). In contrast, drug
addiction or alcoholism is not a “contributing factor material to the
determination of disability” if the claimant still would be disabled even if the
person stopped using drugs or alcohol. 

The claimant “bears
the burden of proving that drug or alcohol addiction is not a contributing factor
material to her disability.” Brown v. Apfel, 

, 498 (5th Cir. 1999).
       Here, the ALJ found under step one that Smith is not presently
performing substantial gainful activity, under step two that her ailments are
“severe,” and under step three that Smith has experienced symptoms that would
meet the criteria of at least one listed impairment from Appendix 1 of the
regulations.1 Thus, the ALJ found that Smith was disabled. However, the ALJ

       1
         In his “findings,” the ALJ stated that Smith’s impairments were not severe
(suggesting that he ended his inquiry at step two), but in his “evaluation of the evidence” the
ALJ noted that “[t]his evidence indicates that [Smith] has bipolar disorder, anxiety, and a
personality disorder, which would be considered to be ‘severe’ as defined in the Social Security

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also found that her substance abuse was a contributing factor material to a
finding of disability. Therefore, under 42 U.S.C. § 1382c(a)(3)(J), Smith was
ineligible to receive disability benefits.
       On appeal, Smith challenges the ALJ’s findings, arguing that he did not
give enough weight to the reports of her physicians; one of Smith’s treating
doctors, as well as a consulting psychologist, had stated that Smith had stopped
using drugs and still suffered various mental impairments, and that the drugs
and alcohol had not caused her symptoms. However, the ALJ’s written opinion
demonstrates that the ALJ carefully considered the reports of all of the doctors
and discounted the statements from Smith’s physicians as “inconsistent with
[Smith’s] medical history.” Indeed, the record reveals that Smith admitted using
drugs on several occasions even though her medical reports from those time
periods did not mention any drug use. The ALJ also noted that Smith admitted
that she had “learned not to tell doctors that she is an addict” and had attempted
to keep any mention of illegal drug use out of her records because she was trying
to regain custody of her children. As we have stated previously, “[t]he ALJ is
free to reject the opinion of any physician when the evidence supports a contrary
conclusion.”     Newton v. Apfel, 

, 455 (5th Cir. 2000) (internal
quotation marks omitted). Here, the record is replete with evidence that Smith’s
drug use continued even after she filed for disability benefits, and the ALJ acted
within his discretion in discounting Smith’s doctors’ statements to the contrary.
That is, the ALJ properly weighed all of the medical evidence and considered
each report in conjunction with the rest of the evidence, adequately explaining
why he rejected the conclusions of some of the medical reports. Therefore,
substantial evidence supports the ALJ’s decision that Smith did not meet her



Act and Regulations, and suggests that [Smith] has experienced symptoms that would meet
the criteria set forth in [Appendix 1].” Thus, Smith’s assertion that the ALJ improperly failed
to consider step three is without merit.

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                                 No. 07-51161

burden of showing that her drug use was not a contributing factor material to
the finding of disability.
      Smith also argues that the ALJ applied the wrong legal standard because
he failed to comply with the Appeals Council’s remand order. Although it is
difficult to discern Smith’s precise argument from her brief, a review of the
record demonstrates that the ALJ followed the Appeals Council’s directives. The
Appeals Council instructed the ALJ to apply the five-step evaluation process and
determine if Smith was disabled, and if so, whether her drug and alcohol abuse
were contributing factors. This is exactly what the ALJ did. Contrary to Smith’s
suggestion, there was no need for the ALJ to conduct any further inquiries after
he found that Smith’s drug use precluded her from obtaining benefits.
      The remainder of Smith’s arguments on appeal amount to conclusory
statements that the ALJ failed to consider Smith’s mental impairments or
improperly valued certain medical reports over others. As stated above, these
arguments are without merit. The ALJ undertook a thorough review of all of the
evidence. The medical evidence showed that Smith did not meet her burden of
demonstrating that her drug use was not a contributing factor material to her
disabilities. Therefore, we AFFIRM the ruling of the district court.
      AFFIRMED.




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