Lonnie Garner v. Michael Astrue, No. 10-1743 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1743 LONNIE GARNER, Plaintiff Appellee, v. MICHAEL J. ASTRUE, Commissioner of Social Security,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 KING, Circuit Decided: Judges, and June 21, 2011 HAMILTON, Senior Reversed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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. § 405(g) (2006); (4th Cir. 2005) Johnson (per v. 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 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 (8th Cir. 2004); Markle v. 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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