Lonnie Garner v. Michael Astrue
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cv-00304-BO Copies to all parties and the district court/agency. [998616119].. [10-1743]
Appeal: 10-1743
Document: 34
Date Filed: 06/21/2011
Page: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1743
LONNIE GARNER,
Plaintiff – Appellee,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:08-cv-00304-BO)
Submitted:
April 11, 2011
Before MOTZ and
Circuit Judge.
KING,
Circuit
Decided:
Judges,
and
June 21, 2011
HAMILTON,
Senior
Reversed by unpublished per curiam opinion.
Tony West, Assistant Attorney General, George E. B. Holding,
United States Attorney, Thomas M. Bondy, Ian J. Samuel,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.
Diane
S. Griffin, CHARLES HALL LAW FIRM, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 10-1743
Document: 34
Date Filed: 06/21/2011
Page: 2 of 5
PER CURIAM:
The Commissioner of the Social Security Administration
appeals
Lonnie
and
the
district
Garner’s
court’s
application
supplemental
for
security
intelligence testing.
order
remanding
disability
income
to
the
insurance
benefits
for
agency
benefits
additional
The Commissioner argues that the district
court improperly shifted the burden of proof.
The Commissioner
asserts that his decision is supported by substantial evidence
and
that
testing
Garner
where
is
the
not
entitled
physician
to
additional
administering
concluded Garner minimized his performance.
The
district
court
judgment on the pleadings.
granted
the
intelligence
initial
test
We agree.
Garner’s
Fed. R. Civ. P. 12(c).
motion
for
Pursuant to
the Federal Rules of Civil Procedure, a district court should
treat a motion for judgment on the pleadings as a motion for
summary
judgment
where
“matters
outside
the
presented to and not excluded by the court.”
12(d).
pleadings
are
Fed. R. Civ. P.
Because the district court considered the administrative
record, we review the district court’s order as the grant of
summary judgment, and therefore renew it de novo, using the same
standards of review applied by the district court.
Blair,
549
F.3d
Commissioner’s
deferential
953,
958
disability
substantial
(4th
Cir.
2008).
determination
evidence
2
We
under
standard.
See
See Nader v.
review
the
42
the
highly
U.S.C.
Appeal: 10-1743
Document: 34
§ 405(g)
(2006);
(4th Cir. 2005)
Date Filed: 06/21/2011
Johnson
(per
v.
Page: 3 of 5
Barnhart,
curiam).
434
Substantial
F.3d
650,
evidence
is
653
“such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”
Johnson, 434 F.3d at 653 (internal
quotation marks omitted).
or
make
credibility
decision
is
conflicting
determinations
supported
evidence
This court does not reweigh evidence
by
in
evaluating
substantial
allows
reasonable
defer to the Commissioner’s decision.
whether
evidence;
minds
to
a
“[w]here
differ,”
we
Id.
Garner bears the burden of proving that he is disabled
within
the
meaning
of
§ 423(d)(5)
(2006);
English
(4th Cir. 1993).
the
Social
v.
416.920(a)(4) (2010).
one
through
10
F.3d
42
U.S.C.
1080,
1082
See 20 C.F.R. §§ 404.1520(a)(4),
The claimant bears the burden of proof at
four,
Commissioner at step five.
146 n.5 (1987).
Shalala,
Act.
The Commissioner uses a five-step process to
evaluate a disability claim.
steps
Security
but
the
burden
shifts
to
the
See Bowen v. Yuckert, 482 U.S. 137,
If a decision regarding disability can be made
at any step of the process, however, the inquiry ceases.
See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Here, we conclude that Garner has failed to meet his
burden and that the Commissioner’s finding that Garner is not
disabled is supported by substantial evidence.
At step two, the
administrative law judge (“ALJ”) determined that Garner had a
3
Appeal: 10-1743
Document: 34
Date Filed: 06/21/2011
Page: 4 of 5
combination of impairments that qualify as severe. *
However, at
step three, where Garner retains the burden of proof, the ALJ
found that Garner’s impairments did not meet or medically equal
any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
app. 1.
test,
Because Garner minimized his performance on the IQ
thereby
invalidating
the
result,
the
only
evidence
he
presented arguably establishing any mental impairment consisted
of, first, school records from the ninth grade reporting scores
on a national aptitude test placing him in the upper borderline
to lower average range of intelligence, and second, a mental
residual
functional
capacity
assessment
finding
Garner
“not
significantly limited” in a majority of the twenty categories
assessed, and no more than “moderately limited” in any category.
Garner is not entitled to additional tests because he chose to
invalidate the results of the initial evaluation.
See Lax v.
Astrue, 489 F.3d 1080, 1086-89 (10th Cir. 2007); Longworth v.
Comm’r
of
Soc.
(6th Cir. 2005);
Sec.
Johnson
Admin.,
v.
402
Barnhart,
*
390
F.3d
F.3d
591,
597-98
1067,
1070-71
Although the ALJ failed to list these impairments at step
two, the analysis at step three makes it clear that the ALJ
found Garner’s severe impairments included status-post gunshot
wound, status-post S1-S2 laminectomy, mild radiculopathy, and
post-traumatic stress disorder.
Accordingly, Garner has failed
to show that he was harmed by the ALJ’s drafting error.
See
Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (stating party
attacking agency determination bears the burden of showing that
an error was harmful).
4
Appeal: 10-1743
Document: 34
(8th Cir. 2004);
Date Filed: 06/21/2011
Markle
v.
Page: 5 of 5
Barnhart,
324
F.3d
182,
184-86
court’s
remand
(3d Cir. 2003).
Accordingly,
order and
We
uphold
dispense
with
the
oral
we
reverse
the
Commissioner’s
argument
district
disability
because
the
determination.
facts
and
legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
REVERSED
5
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