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that this opinion should not be published and is not precedent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

United States Court of Appeals

Fifth Circuit

FILED

December 30, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

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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
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

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. 
3

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
4

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
5

“[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
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

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.