UNPUBLISHED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 Decided: June 21, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 the district court’s order remanding to the agency
Lonnie Garner’s application for disability insurance benefits
and supplemental security income benefits for additional
intelligence testing. 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 Garner is not entitled to additional intelligence
testing where the physician administering the initial test
concluded Garner minimized his performance. We agree.
The district court granted Garner’s motion for
judgment on the pleadings. Fed. R. Civ. P. 12(c). 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 pleadings are
presented to and not excluded by the court.” Fed. R. Civ. P.
12(d). 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. See Nader v.
Blair, 549 F.3d 953, 958 (4th Cir. 2008). We review the
Commissioner’s disability determination under the highly
deferential substantial evidence standard. See 42 U.S.C.
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§ 405(g) (2006); Johnson v. Barnhart, 434 F.3d 650, 653
(4th Cir. 2005) (per curiam). Substantial evidence is “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). This court does not reweigh evidence
or make credibility determinations in evaluating whether a
decision is supported by substantial evidence; “[w]here
conflicting evidence allows reasonable minds to differ,” we
defer to the Commissioner’s decision. Id.
Garner bears the burden of proving that he is disabled
within the meaning of the Social Security Act. 42 U.S.C.
§ 423(d)(5) (2006); English v. Shalala, 10 F.3d 1080, 1082
(4th Cir. 1993). The Commissioner uses a five-step process to
evaluate a disability claim. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2010). The claimant bears the burden of proof at
steps one through four, but the burden shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987). 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
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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. Because Garner minimized his performance on the IQ
test, 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. Sec. Admin., 402 F.3d 591, 597-98
(6th Cir. 2005); Johnson v. Barnhart, 390 F.3d 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).
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(8th Cir. 2004); Markle v. Barnhart, 324 F.3d 182, 184-86
(3d Cir. 2003).
Accordingly, we reverse the district court’s remand
order and uphold the Commissioner’s disability determination.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
REVERSED
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