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

                                                                            FILED
                                                                            April 2, 2008

                                     No. 07-51018                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


REYMUNDO R MENDOZA

                                                  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. 5:06-CV-982


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The Commissioner of Social Security denied Reymundo Mendoza’s
application for Supplemental Security Income (“SSI”).                   See 42 U.S.C. §§
1381–1381c. The district court affirmed and Mendoza now appeals. Finding no
error, we AFFIRM.
       The facts are not in substantial dispute. In his application for SSI,
Mendoza alleged significant disabilities, including back problems, hepatitis C,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51018

liver problems, gastroesophogeal reflux disease, and vision problems. The
Administrative Law Judge (“ALJ”) below determined that Mendoza is not
disabled within the meaning of the Social Security Act (“the Act”) and was
therefore not entitled to SSI. The Appeals Council denied further review; the
decision of the ALJ therefore became the final decision of the Commissioner.

             We review the denial of benefits only to ascertain whether
       substantial evidence supports the final decision and whether the
       Commissioner used the proper legal standards to evaluate the
       evidence. We affirm the Commissioner's findings whenever
       supported by substantial evidence. Substantial evidence “is more
       than a mere scintilla and less than a preponderance.”

Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (quoting Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)) (citations and quotation marks omitted).
       Mendoza appears to challenge the evidentiary basis of the ALJ’s decision.1
The evidence before the ALJ was more than sufficient to establish that Mendoza
was not disabled within the meaning of the Act and despite his various maladies.
See Lorza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000) (describing five-element test
for determining existence of a disability, including evaluation of applicant’s
present ability to engage in substantial gainful activity and applicant’s ability
to return to past work). In particular, the evidence showed that Mendoza
engaged in substantial gainful employment—as a dishwasher for a
restaurant—during the periods relevant to his application for SSI. As such,




       1
         This is a generous reading of Mendoza’s brief. The arguments advanced by Mendoza
are difficult to discern, even given our generous approach to pro se briefs. Mendoza served a
prison sentence from March 1974 to February 2003 and was accordingly not eligible for SSI.
See § 1382(e)(1); 20 C.F.R. § 404.468. Most of Mendoza’s arguments appear directed towards
the putative illegality of the Act making prisoners ineligible for SSI—Mendoza cites both
liberty interest concerns and ex post facto concerns. But the ALJ found that Mendoza was
actually not disabled; Mendoza’s eligibility turns on that determination, not his incarceration.

                                               2
                                       No. 07-51018

Mendoza did not qualify as disabled under § 1382c(a)(3)(A).2 See also 20 C.F.R.
§ 416.920(a)(i). Further, Mendoza’s work as a dishwasher also supported the
ALJ’s determination that Mendoza remained capable of working full time, and
was therefore not disabled. See 20 C.F.R. § 416.920(a)(4)(iv). Thus, though
there is medical evidence that Mendoza was in some degree of pain,3 the
determination of the ALJ is nevertheless supported by substantial evidence.
                                                                              AFFIRMED.




       2
         Section 1382c(a)(3)(A) provides in relevant part: “an individual shall be considered
to be disabled for purposes of this subchapter if he is unable to engage in any substantial
gainful activity by reason of any medically determinable physical . . . impairment which . . .
can be expected to last for a continuous period of not less than twelve months.”
       3
        Mendoza makes some reference to a motion to file an affidavit in support of his brief,
presumably with the purpose of establishing new medical evidence. This motion is not
properly before us, as Mendoza was notified of the motion’s failure to comply with 5TH CIR. R.
31.1 but failed to cure its defects. Moreover, Mendoza apparently attempted to submit this
new evidence to the district court, which appropriately found that it only supported filing of
a new SSI application, not remand to the Social Security Administration. See Ellis v. Bowen,
820 F.2d 682, 684 (5th Cir. 1987); 42 U.S.C. 405(g).

                                              3
