Spence v. Barnhart , 159 F. App'x 593 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 30, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-50906
Summary Calendar
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JULIE SPENCE,
Plaintiff–Appellant,
v.
JO ANNE B. BARNHART,
Defendant–Appellee.
Appeal from the United States District Court
for the Western District of Texas
District Court No. A:04-CV-053-LY
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Julie Spence seeks review of the administrative law judge’s
(“ALJ”) denial of Disability Insurance Benefits (“DIB”). Ms.
Spence filed her application for DIB on April 12, 2002. She was
born in 1960 and completed the ninth grade. Ms. Spence claims to
be disabled since May 26, 2001 due to back and leg pain.1 After
*
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that this opinion should not be published and is not precedent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.
1
Ms. Spence initially complained of leg pain and later
alleged she was disabled due to back pain. Although Ms. Spence
suffered from leg pain because she cut herself with a knife, it
an administrative hearing, on July 24, 2003, the ALJ issued a
decision denying Ms. Spence benefits. The ALJ found that Ms.
Spence could not perform her past work as a school bus driver and
child care attendant. However, based on the opinion of a
vocational expert, the ALJ concluded there were a significant
number of sedentary and unskilled jobs in the national and local
economy that Ms. Spence could perform. The ALJ determined that
Ms. Spence could work as a call out operator, surveillance system
monitor, and order clerk-food/beverage.
On August 19, 2003, Ms. Spence’s newly retained attorney,
Mary Ellen Felps, wrote a letter to the ALJ arguing that although
Ms. Spence claimed her “real problem” was her back, Ms. Spence
actually suffered from learning disabilities, anxiety and
depression. Ms. Felps contended that Ms. Spence’s “real
disabling condition” is her mental status. The letter asked the
ALJ to reopen the file and also asked the ALJ to send Ms. Felps a
copy of Ms. Spence’s file before the ALJ sent the file to the
Appeals Council. The letter indicated that Ms. Felps was sending
Ms. Spence to get I.Q. testing and a mental health evaluation.
However, neither the ALJ nor the Appeals Council received any
such reports or assessments. The Appeals Council did receive Ms.
Felps’ letter, which was made a part of the record.
appears from the record that Ms. Spence also suffered from back
pain that radiated to her leg. At the administrative hearing,
Ms. Spence admitted that she stopped working because she left her
husband, not because of leg or back pain.
2
On December 5, 2003, after a properly filed appeal dated
September 16, 2003, the Appeals Council concluded that there was
no reason to review the ALJ’s decision and denied Ms. Spence’s
request for review. On January 30, 2004, Ms. Spence filed a
complaint in federal district court, seeking review of the
Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).
The magistrate judge recommended the ALJ’s decision be affirmed.
In Ms. Spence’s objection to the magistrate judge’s report, she
attached a letter dated September 24, 2003 from Dr. Lester
Harrell. This letter indicated that Ms. Spence suffers from
severe depression and stated that her verbal IQ is 73. This
report was not submitted to the ALJ, the Appeals Council or to
the magistrate judge. On May 12, 2005 the district judge issued
an order affirming the Commissioner’s decision. Ms. Spence then
filed this appeal.
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). Ms. Spence makes four
claims: (1) the ALJ’s decision was not based on substantial
evidence (2) the ALJ’s decision was not based on the proper legal
standard with regard to Ms. Spence’s credibility; (3) the ALJ
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improperly failed to consider the new and material evidence of
Ms. Spence’s mental functioning; and (4) the Commissioner’s
failure to provide Ms. Felps with a copy of Ms. Spence’s file at
the administrative level requires remand.
Ms. Spence generally argues that the ALJ’s decision is not
supported by substantial evidence and that the correct legal
standards were not followed. 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.
Since the ALJ’s findings are supported by the record, we
find Ms. Spence’s arguments wholly without merit. The ALJ asked
the vocational expert hypothetical questions that properly took
Ms. Spence’s limitations, as established by the record, into
account. The ALJ properly relied on the vocational expert’s
answers to these questions. Evidence in the record confirms
that, although Ms. Spence’s leg and back pain preclude her from
performing any of her past relevant work, she is capable of
performing a significant range of sedentary work.
Ms. Spence contends that the ALJ failed to support its
credibility assessment with specific facts. The ALJ found that
4
“[Ms. Spence’s] statements concerning her impairment and its
impact on her ability to work [were] not entirely credible. The
limitations alleged [were] neither consistent with nor well
supported by the objective medical evidence.” The ALJ then
explained that Ms. Spence’s complaints suggest a greater severity
of impairment than can be shown by the medical evidence,
specifically mentioning that Dr. Garcia’s impression was that Ms.
Spence’s left leg pain had been resolved. The ALJ recognized
that Ms. Spence experiences some degree of pain, but concluded
that the objective medical evidence and Ms. Spence’s testimony
did not establish that Ms. Spence was “so severely impaired as to
preclude all types of work activity.” The ALJ’s evaluation of
Ms. Spence’s credibility was proper. See Carrier v. Sullivan,
944 F.2d 243, 246-47 (5th Cir. 1991).
Ms. Spence next claims that the Commissioner’s failure to
consider evidence of her mental functioning and failure to
provide Ms. Felps with a copy of Ms. Spence’s file at the
administrative level warrants remand. We may remand the case to
the Commissioner “upon a showing that there is new evidence which
is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.”
42 U.S.C. § 405(g). Ms. Spence has made no such showing.
Ms. Spence argues the ALJ improperly failed to consider the
new and material evidence of her mental functioning. This court
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only reviews the Commissioner’s final decisions. 42 U.S.C.
405(g). The Commissioner’s decision becomes final when the
Appeals Council denies a request for review. Higginbotham v.
Barnhart, 405 F.3d 332, 337-38 (5th Cir. 2005). Ms. Spence
claimed she needed DIB because of back or leg pain; she did not
claim any mental disabilities prior to the Appeals Council’s
decision not to review her claim. The ALJ cannot consider
nonexistent evidence, and we cannot consider evidence submitted
after the ALJ’s decision became final. Thus, there is no merit
to this claim. The fact that the ALJ did not provide a copy of
the record to Ms. Felps is not good cause for a failure to
incorporate metal health evidence into the record. Nothing
requires that the ALJ copy records for a claimant. See Pucket v.
Chater, 100 F.3d 730, 734 (10th Cir. 1996); it is sufficient that
the Commissioner make them available for review. See, e.g., 20
CFR § 404.916(b)(3).2
For the reasons above, we affirm the judgment of the
district court.
AFFIRMED.
2
Compare requests made to the Appeals Council. Claimants
may request copies of documents upon which the hearing decision
was based or copies of the transcript of oral evidence from the
Appeals Council. See 20 C.F.R. § 404.974. Ms. Spence did not
make such a request to the Appeals Council.
6