                                                       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
                      ))))))))))))))))))))))))))                 Clerk
                            No. 05-10729

                          Summary Calendar
                      ))))))))))))))))))))))))))

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that this opinion should not be published and is not precedent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.

                                 4
     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.

                                  5
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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