                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-1335


APRIL M. FISKE,

                  Plaintiff - Appellant,

          v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

                  Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:09-cv-00564-D)


Submitted:   December 22, 2011              Decided:   January 6, 2012


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


William   Lee  Davis,   III,  Lumberton,   North   Carolina, for
Appellant. Thomas Walker, United States Attorney, Robert Crowe,
Special Assistant United States Attorney, SOCIAL SECURITY
ADMINISTRATION, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             April McCarty Fiske appeals the district court’s order

affirming the Commissioner of Social Security’s denial of her

application for disability insurance benefits.                          We must uphold

the decision to deny benefits if the decision is supported by

substantial evidence and the correct law was applied.                            42 U.S.C.

§ 405(g)     (2006);      Johnson     v.       Barnhart,       434     F.3d      650,     653

(4th Cir. 2005)      (per    curiam).             “Substantial        evidence    is     such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.”             Johnson, 434 F.3d at 653 (internal

quotation marks omitted).            This court does not reweigh evidence

or    make   credibility      determinations            in    evaluating      whether       a

decision     is     supported       by        substantial       evidence;         “[w]here

conflicting       evidence   allows       reasonable          minds    to   differ,”       we

defer to the Commissioner’s decision.                   Id.    We affirm.

             Fiske asserts that her initial claim was reopened by

the    August     2006    decision       of       the   administrative        law       judge

(“ALJ”).     She argues that, if a claim is reconsidered on the

merits at any administrative level and has in fact been reopened

at any administrative level, the claim is subject to judicial

review.      Fiske       argues   that         the      Commissioner        actually       or

constructively reopened the prior decision and that the Appeals

Council therefore erred in applying res judicata.



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             “The    findings         and    decision     of     the      Commissioner     of

Social     Security     after     a     hearing     shall      be    binding    upon     all

individuals       who   were      parties      to   such      hearing.”        42   U.S.C.

§ 405(h)     (2006).         Accordingly,          res   judicata         applies   when    a

“previous        [disability]      determination         or     decision      has   become

final by either administrative or judicial action.”                             20 C.F.R.

§ 404.957(c)(1) (2011).            The Commissioner may elect to reopen a

prior     decision,     20   C.F.R.         §§ 404.987,       988    (2011),    but    this

decision is not reviewable.                 See Culbertson v. Sec’y of Health &

Human Servs., 859 F.2d 319, 322 (4th Cir. 1988) (“When deciding

whether     to     reopen    or    to       reconsider     his      own    administrative

determinations, the Secretary enjoys broad discretion, which is

generally not subject to judicial review.”).

             Here, the Appeals Council determined that res judicata

barred a finding of disability during the period at issue in

Fiske’s prior disability application. 1                        The Council’s inquiry

into the ALJ’s decision and evidence concerning this period does

not constructively reopen the claim.                       See Hall v. Chater, 52

F.3d 518, 521 (4th Cir. 1995) (holding that Appeals Council did

not     explicitly      or   implicitly         reopen     case      and    stating    that

Appeals Council must be afforded opportunity to look far enough

      1
       Because the Commissioner’s final decision was that Fiske
was never disabled, medical improvement was not in issue and we
need not reach Fiske’s argument on this point.



                                               3
into record to determine whether res judicata applies).                                      Because

the Commissioner’s decision not to reopen Fiske’s prior claim is

not      subject        to     judicial                review,       res         judicata      bars

reconsideration of that claim.

             Next, Fiske argues that the Commissioner’s conclusion

that   she      is    not     disabled        is       not    supported          by    substantial

evidence.        She     contends       that       the       ALJ    did    not    give      adequate

consideration to the medical evidence provided by her treating

physician,       that    the    ALJ     failed          to    cite    or    refer      to    medical

evidence in support of his residual functional capacity finding,

and that the ALJ failed to consider the effects of her medical

treatment, the side effects from her medications, as well as her

complaints of pain and other symptoms.

             Fiske bears the burden of proving that she is disabled

within    the    meaning       of      the    Social         Security      Act.         42   U.S.C.

§ 423(d)(5)       (2006);      English         v.       Shalala,      10    F.3d       1080,    1082

(4th Cir. 1993).             The Commissioner uses a five-step process to

evaluate     a       disability        claim.           20    C.F.R.       §§ 404.1520(a)(4),

416.920(a)(4)           (2011).              Pursuant          to     this        process,      the

Commissioner          asks,       in      sequence,            whether           the     claimant:

(1) worked during the alleged period of disability; (2) had a

severe impairment; (3) had an impairment that met or equaled the

severity of a listed impairment; (4) could return to her past

relevant work; and (5) if not, could perform any other work in

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the national economy.              Id.      The claimant bears the burden of

proof at steps one through four, but the burden shifts to the

Commissioner at step five.               See Bowen v. Yuckert, 482 U.S. 137,

146 n.5 (1987).         If a decision regarding disability can be made

at any step of the process, the inquiry ceases.                           20 C.F.R.

§§ 404.1520(a)(4), 416.920(a)(4).

             Although Fiske argues that the ALJ failed to afford

the opinion of her treating physician controlling weight, she

has   failed     to     identify      any    opinion     contrary    to   the    ALJ’s

conclusion. 2         See   Fed.    R.    App.     P.   28(a)(9)    (requiring    that

appellant’s     brief       contain      “contentions     and   reasons   for     them,

with citations to the authorities and parts of the record on

which the appellant relies”).                 To the extent Fiske argues the

ALJ failed to give sufficient weight to Dr. Strahl’s opinion,

the argument is without merit.                   Although Dr. Strahl opined that

Fiske     met   a     listed   impairment         between   2000    and   2003,    the

Commissioner was not required to accept his opinion.                            See 20

C.F.R. § 404.1527(f)(2)(iii), (f)(3) (2011).                    In any event, the

period from 2000 to 2003 is outside the time period relevant in

this case.          With reference to the relevant time period, Dr.


      2
       The only physician Fiske names apart from Dr. Strahl is
Dr.   John   Roberts,   who   saw   Fiske  briefly   during  her
hospitalization in 2000.    While under Dr. Roberts’ care, Fiske
improved “dramatically” and her affect was “brighter.”



                                             5
Strahl indicated Fiske could work.                   The Commissioner’s decision

gave    considerable       weight    to    Dr.     Strahl’s    opinion       within    the

relevant       time    inasmuch     as    the      residual    functional       capacity

finding mirrors Dr. Strahl’s testimony.

               Fiske    contends     that     the     ALJ’s    residual       functional

capacity assessment does not cite or refer to medical evidence

to support his finding.              Fiske is mistaken.              The ALJ reviewed

treatment       notes     tracking       Fiske’s     progress        from    March    2003

through     February      2006.          Moreover,     the     ALJ     considered      the

testimony of Dr. Stahl, who reviewed Fiske’s medical records,

listened to her testimony, and opined that Fiske was stable and

could work with some limitations.

               Lastly, Fiske argues that the ALJ failed to consider

the side effects from her medications as well as her complaints

of pain and other symptoms.               Fiske did not mention any limiting

pain in her disability application or during the hearing, and

her    brief    fails    to    identify      the    evidence    the    ALJ    failed    to

consider with any specificity.

               Based on the foregoing, we conclude that substantial

evidence       supports       the   agency       decision,     and     we    affirm    the

judgment of the district court.                  We dispense with oral argument

because the facts and legal contentions are adequately presented




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in the materials before the court and argument would not aid the

decisional process.

                                                        AFFIRMED




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