UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10994

JOSEPHINE HURNDON,

Plaintiff-Appellant,

VERSUS

KENNETH S. APFEL, Commissioner, Social Security Administration,

Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas (3:98-CV-2354) August 21, 2000 Before GARWOOD, DeMOSS and PARKER, Circuit Judges. PER CURIAM:*

Josephine Hurndon appeals the dismissal of her complaint

challenging the denial of her social security disability benefits

claim. We affirm.

An Administrative Law Judge (“ALJ”) found Hurndon disabled as

of January 10, 1996, but not disabled on her alleged onset date of

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 disability on March 18, 1993 through January 9, 1996. Hurndon was

held not entitled to disability insurance benefits under the Social

Security Act because her insured status expired on December 31,

1994, before her period of disability began.

The ALJ determined that, during the relevant time period,

Hurndon suffered from a “severe” impairment, as defined by the

Social Security Act, caused by decreased hearing, lupus and

obesity. See

(d) and 416.920(d). He found

that her impairments amounted to a listed impairment and she could

not return to her past relevant work, but that she retained the

residual functional capacity to perform sedentary work with a sit

and stand option. The ALJ also found that Hurndon had acquired

transferable work skills from her past employment. Based on

vocational expert testimony, the ALJ determined that Hurndon could

perform jobs that existed in significant numbers in the national

economy, and denied her claim. Hurndon requested a review of the

ALJ’s decision by the Appeals Council which denied her request for

review, making the ALJ’s decision final.

Hurndon filed a complaint in the district court claiming,

inter alia, that substantial evidence did not support the ALJ’s

finding that she retained transferable skills. The district court

dismissed the complaint, finding that any error that the ALJ had

made in finding that Hurndon’s work skills were transferable was

harmless because the evidence showed jobs within Hurndon’s capacity

2 that did not involve transferable work skills.

A social security claimant must exhaust administrative

remedies before the claimant can seek judicial review in federal

court. See

(a), (b). Hurndon’s pro se request

for review filed with the Appeals Council, although arguably not

raising the issues addressed in this appeal, satisfied that

requirement. See Sims v. Apfel, ___ U.S. ___,

(2000)(“Claimants who exhaust administrative remedies need not

also exhaust issues in a request for review by the Appeals Council

in order to preserve judicial review of those issues.”).

Hurndon asserts in her first point of error that the ALJ’s

finding that she possessed transferable work skills was not

supported by the evidence. The district court found that the ALJ’s

alleged error in identifying transferable skills was harmless and

did not justify overturning the final administrative decision

because jobs within Hurndon’s residual functional capacity not

involving the transferability of work skills were identified by the

vocational expert and the ALJ. See 20 C.F.R, § 404.1568. We agree

that any error by the ALJ concerning Hurndon’s transferable work

skills did not affect her substantial rights and therefore does not

require reversal. See Anderson v. Sullivan,

(5th

Cir. 1989).

Hurndon next asserts that the record does not contain evidence

of the number of available unskilled jobs that she could perform.

3 The Commissioner contends that Hurndon did not properly raise the

issue regarding the sufficiency of the evidence of unskilled jobs

in the district court and that she has waived the right to

appellate review of this issue.

Hurndon raised the issue for the first time in her objections

to the magistrate judge’s findings, conclusions and recommendation.

The district court overruled Hurndon’s objections and adopted the

magistrate judge’s report without specific discussion of the

sufficiency of the evidence point. A district court may construe

an issue raised for the first time in an objection to a magistrate

judge’s report and recommendation as a motion to amend complaint.

See United States v. Riascos,

(5th Cir. 1996).

Leave to amend a pleading out-of-time should be freely given when

justice so requires. See

We review the district court’s failure to allow such an

amendment for abuse of discretion. See

The district court’s

discretion is bounded by two competing interests: the need to bring

litigation to an end and the need to render a just decision. See

Freeman v. County of Bexar,

(5th Cir. 1998).

We find no basis in the record or in the briefs for concluding that

the ALJ’s finding that Hurndon could perform jobs that existed in

significant numbers in the national economy was unjust. The

district court did not abuse its discretion in failing to consider

Hurndon’s argument, raised for the first time in her objections to

4 the magistrate’s report.

Based on the foregoing, we affirm.

AFFIRMED.

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