                                                      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this opinion should not be published and is not precedent except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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