United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 10, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 05-10729
Summary Calendar
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MELODY J. GARSON,
Plaintiff–Appellant,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant–Appellee.
Appeal from the United States District Court
for the Northern District of Texas
District Court No. 1:03-CV-0245-C
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Melody J. Garson seeks review of the administrative law
judge’s (“ALJ”) denial of Disability Insurance Benefits (“DIB”).
Ms. Garson filed her application for DIB on July 20, 2000.
I. Facts and Procedure
Ms. Garson was born in 1955 and completed the eighth grade.
Ms. Garson claims to have been disabled since February 1, 2000
due to degenerative changes of the spine, obesity, borderline
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
intellectual functioning, and dysthymia. At the administrative
hearing, Ms. Garson also claimed to suffer from urinary and bowel
incontinence, as well as foot spurs with foot pain and swelling.
She also stated she has depression with suicidal thoughts,
bipolar disorder, and post traumatic stress disorder due to
verbal, physical and sexual abuse as a child.
On February 1, 2002, after considering Ms. Garson’s age,
educational background, work experience and residual functional
capacity, the ALJ denied Ms. Garson benefits. He found that Ms.
Garson could not perform her past relevant work as a cook,
dishwasher, housemother, or attendant working with handicapped
children. However, based on the opinion of a vocational expert,
the ALJ concluded Ms. Garson could perform a restricted range of
light work. As a result, there were a significant number of
sedentary and unskilled jobs in the national and local economy
that Ms. Garson could perform.
On October 31, 2003, the Appeals Council concluded that
there was no reason to review the ALJ’s decision and denied Ms.
Garson’s request for review. Ms. Garson filed a complaint in
federal district court, seeking review of the Commissioner’s
final decision pursuant to 42 U.S.C. § 405(g). On March 18,
2005, the magistrate judge recommended the ALJ’s decision be
affirmed. On March 30, 2005, the district judge issued an order
affirming the Commissioner’s decision. Ms. Garson then filed
this appeal.
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II. Analysis
Our review is limited to two questions: (1) whether the
Commissioner’s final decision is supported by substantial
evidence, and (2) whether proper legal standards were used to
evaluate the evidence. Watson v. Barnhart, 288 F.3d 212, 215
(5th Cir. 2002)(citing Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999)); see also 42 U.S.C. § 402(g). Substantial evidence
“is more than a scintilla but less than a preponderance and is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Watson, 288 F.3d at 215
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Although we carefully examine the record, it is the
Commissioner’s role to weigh the evidence. Brown, 192 F.3d at
496.
Ms. Garson argues that the Commissioner failed to consider
all of her limitations in determining her residual functional
capacity. However, the ALJ’s findings are supported by the
record. The ALJ concluded that although Ms. Garson retained the
functional capacity for light work, she was further restricted to
performing those jobs that require only occasional climbing,
stooping, kneeling, crouching, and crawling. The ALJ also found
that Ms. Garson had a mild concentration deficit and was limited
to performing those jobs with a reasoning development level of
1,2, or 3, as defined by the Dictionary of Occupational Titles.
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The ALJ explained that neither Ms. Garson’s testimony nor the
medical evidence supported her basic allegation that she is
unable to perform any work on a regular and continuing basis.
Recognizing in his evaluation of the evidence that Ms. Garson
sought mental health treatment in January 2001, the ALJ found Ms.
Garson’s testimony regarding mental health care unbelievable.1 He
also stated that there was no evidence to support her contention
of incontinence. Finally, the ALJ explained that Ms. Garson’s
respiratory ailments did not impose any work-related limitations
and pointed out that there was no recent evidence of any cardiac
impairment.
Ms. Garson argues that new evidence submitted to the Appeals
Council indicated that she has edema of the lower extremities,
limitation of motion in the shoulders, severe degenerative joint
disease in her left knee, and is only capable of performing light
work duty for one-and-a-half hours per day. The Appeals Council
considered the evidence but found that the new evidence did not
provide a basis for changing the ALJ’s decision. The conditions
justifying a remand based on new evidence are limited.
In order to justify a remand, the evidence must be (1)
new, (2) material, and (3) good cause must be shown
for the failure to incorporate the evidence into the
record in a prior proceeding. In addition, the new
evidence must also pertain to the contested time
period and not merely concern a subsequently acquired
1
At the administrative hearing, Ms. Garson testified that
she did not seek additional mental health care because she was
afraid they would lock her up.
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disability or the deterioration of a condition that
was not previously disabling.
Leggett v. Chater, 67 F.3d 558, 567 (5th Cir. 1995)(internal
quotations omitted).
In this case, the relevant dates are February 1, 2000, the
date Ms. Garson claims she became disabled, and February 1, 2002,
the date of the ALJ’s decision. Dr. Endsley’s2 note that Ms.
Garson is only able to work light duty for one-and-a-half hours
per day and his conclusion that she is therefore unable to
reasonably work, relates to a functional capacity evaluation
performed on May 14, 2002. This does not pertain to the
contested time period. Furthermore, the ALJ considered Ms.
Garson’s physical limitations to the extent they existed during
the contested time period. As the Appeals Council stated, Ms.
Garson needs to re-apply for DIB if she wants the Commissioner to
consider whether she was disabled after February 1, 2002.
Ms. Garson next claims that the Commissioner failed to
establish the existence of work in significant numbers that she
can perform. The ALJ asked the vocational expert to consider a
hypothetical individual of Ms. Garson’s age, education, and
employment history, and with Ms. Garson’s residual functional
capacity. The vocational expert testified that such a person was
2
On May 20, 2002, Dr. Endsley reviewed a functional
capacity evaluation that was performed on Ms. Garson on May 14,
2002. In addition, Dr. Endsley examined Ms. Garson on July 19,
2002.
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capable of performing a job as a machine tender, food assembler,
and assembler. The ALJ found the vocational expert’s testimony
credible and accepted it.
For the reasons above, we AFFIRM the judgment of the
district court.
AFFIRMED.
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