                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                                                  In the                               January 13, 2006
                         United States Court of Appeals                            Charles R. Fulbruge III
                                       for the Fifth Circuit                               Clerk
                                            _______________

                                              m 05-10549
                                            Summary Calendar
                                            _______________




                                      KATHERINE DAUGHERTY,

                                                               Plaintiff-Appellant,

                                                 VERSUS

                                       JO ANNE B. BARNHART,
                                 COMMISSIONER OF SOCIAL SECURITY,

                                                               Defendant-Appellee.


                                     _________________________

                             Appeal from the United States District Court
                                 for the Northern District of Texas
                                           m 2:02-CV-83
                               ______________________________



Before SMITH, GARZA, and PRADO,                           Katherine Daugherty appeals a judgment af-
  Circuit Judges.                                      firming the decision of the Commissioner of
                                                       Social Security (“the Commissioner”) to deny
PER CURIAM:*                                           her application for supplemental security in-
                                                       come benefits. Finding no error, we affirm.

                                                          Daugherty applied for benefits in October
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    1999, claiming impairments including degen-
termined that this opinion should not be published     erative disc disease and severe depression. A
and is not precedent except under the limited cir-     hearing before an administrative law judge
cumstances set forth in 5TH CIR. R. 47.5.4.
(“ALJ”) was held in November 2000. In Jan-             405(g).
uary 2001, the ALJ returned an unfavorable
decision, finding, based on the medical re-                Daugherty’s sole contention is that the
cords, that Daugherty had the capacity to re-          ALJ’s interpretation of the evidence was mis-
turn to her past work as a waitress. The ALJ’s         guided. She makes no substantive arguments
decision was the final administrative decision         on appeal that she did not make before the
of the Commissioner in this matter.                    magistrate judge. Based on our independent
                                                       review of the ALJ’s decision and the adminis-
    Daugherty saught judicial review in district       trative record, we find the report and recom-
court. The magistrate judge issued a report            mendation of the magistrate judge to be a
and recommendation evaluating the ALJ’s de-            proper disposition of the issues in this case.
cision and determining that it was supported           That report accurately evaluates the record ev-
by substantial evidence. The district court            idence relied on by the ALJ and correctly ap-
adopt ed the report and recommendation and             plies the proper legal principles in finding that
affirmed the Commissioner’s decision to deny           substantial evidence supports the Commis-
benefits. On appeal, Daugherty contends only           sioner’s decision.
that the Commissioner’s decision is not sup-
ported by substantial evidence.                           Essentially for the reasons stated in the re-
                                                       port and recommendation, the judgment is AF-
   Our review is limited to determining wheth-         FIRMED.
er there is substantial evidence in the record
supporting the Commissioner’s decision to
deny benefits and whether the Commissioner
applied proper legal standards in doing so.2
We may not re-weigh the record evidence, try
the issues de novo, or substitute our judgment
for that of the Commissioner.3

   Conflicts in the evidence are to be resolved
by the Commissioner, not the courts. Laffon
v. Califano, 558 F.2d 253, 254 (5th Cir.
1977). Only a “conspicuous absence of credi-
ble choices” or “no contrary medical evidence”
will support a finding of no substantial evi-
dence. Hames v. Heckler, 707 F.2d 162, 164
(5th Cir. 1983). If, under these criteria, sub-
stantial evidence supports the Commissioner’s
findings, they are conclusive. See 42 U.S.C. §

   2
     See Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir.1994); Johnson v. Bowen, 864 F.2d 340,
347 (5th Cir.1998).
   3
       See Johnson, 864 F.2d at 343.

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