UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10994
JOSEPHINE HURNDON,
Plaintiff-Appellant,
VERSUS
KENNETH S. APFEL, Commissioner, Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:98-CV-2354)
August 21, 2000
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Josephine Hurndon appeals the dismissal of her complaint
challenging the denial of her social security disability benefits
claim. We affirm.
An Administrative Law Judge (“ALJ”) found Hurndon disabled as
of January 10, 1996, but not disabled on her alleged onset date of
*
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opinion should not be published and is not precedent except under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.
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disability on March 18, 1993 through January 9, 1996. Hurndon was
held not entitled to disability insurance benefits under the Social
Security Act because her insured status expired on December 31,
1994, before her period of disability began.
The ALJ determined that, during the relevant time period,
Hurndon suffered from a “severe” impairment, as defined by the
Social Security Act, caused by decreased hearing, lupus and
obesity. See 20 C.F.R. §§ 404.1520(d) and 416.920(d). He found
that her impairments amounted to a listed impairment and she could
not return to her past relevant work, but that she retained the
residual functional capacity to perform sedentary work with a sit
and stand option. The ALJ also found that Hurndon had acquired
transferable work skills from her past employment. Based on
vocational expert testimony, the ALJ determined that Hurndon could
perform jobs that existed in significant numbers in the national
economy, and denied her claim. Hurndon requested a review of the
ALJ’s decision by the Appeals Council which denied her request for
review, making the ALJ’s decision final.
Hurndon filed a complaint in the district court claiming,
inter alia, that substantial evidence did not support the ALJ’s
finding that she retained transferable skills. The district court
dismissed the complaint, finding that any error that the ALJ had
made in finding that Hurndon’s work skills were transferable was
harmless because the evidence showed jobs within Hurndon’s capacity
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that did not involve transferable work skills.
A social security claimant must exhaust administrative
remedies before the claimant can seek judicial review in federal
court. See 20 C.F.R. § 404.900(a), (b). Hurndon’s pro se request
for review filed with the Appeals Council, although arguably not
raising the issues addressed in this appeal, satisfied that
requirement. See Sims v. Apfel, ___ U.S. ___, 120 S. Ct. 2080,
2086 (2000)(“Claimants who exhaust administrative remedies need not
also exhaust issues in a request for review by the Appeals Council
in order to preserve judicial review of those issues.”).
Hurndon asserts in her first point of error that the ALJ’s
finding that she possessed transferable work skills was not
supported by the evidence. The district court found that the ALJ’s
alleged error in identifying transferable skills was harmless and
did not justify overturning the final administrative decision
because jobs within Hurndon’s residual functional capacity not
involving the transferability of work skills were identified by the
vocational expert and the ALJ. See 20 C.F.R, § 404.1568. We agree
that any error by the ALJ concerning Hurndon’s transferable work
skills did not affect her substantial rights and therefore does not
require reversal. See Anderson v. Sullivan, 887 F.2d 630, 634 (5th
Cir. 1989).
Hurndon next asserts that the record does not contain evidence
of the number of available unskilled jobs that she could perform.
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The Commissioner contends that Hurndon did not properly raise the
issue regarding the sufficiency of the evidence of unskilled jobs
in the district court and that she has waived the right to
appellate review of this issue.
Hurndon raised the issue for the first time in her objections
to the magistrate judge’s findings, conclusions and recommendation.
The district court overruled Hurndon’s objections and adopted the
magistrate judge’s report without specific discussion of the
sufficiency of the evidence point. A district court may construe
an issue raised for the first time in an objection to a magistrate
judge’s report and recommendation as a motion to amend complaint.
See United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996).
Leave to amend a pleading out-of-time should be freely given when
justice so requires. See id.
We review the district court’s failure to allow such an
amendment for abuse of discretion. See id. The district court’s
discretion is bounded by two competing interests: the need to bring
litigation to an end and the need to render a just decision. See
Freeman v. County of Bexar, 142 F.3d 848, 852-53 (5th Cir. 1998).
We find no basis in the record or in the briefs for concluding that
the ALJ’s finding that Hurndon could perform jobs that existed in
significant numbers in the national economy was unjust. The
district court did not abuse its discretion in failing to consider
Hurndon’s argument, raised for the first time in her objections to
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the magistrate’s report.
Based on the foregoing, we affirm.
AFFIRMED.
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