NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2008
Decided January 15, 2009
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐2043
GARY D. BURKE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v.
No. 06‐cv‐1312
MICHAEL J. ASTRUE,
Commissioner of Social Security, Joe Billy McDade,
Defendant‐Appellee. Judge.
O R D E R
Gary Burke appeals the order of the district court affirming the Social Security
Administration’s (“SSA”) denial of his application for Supplemental Security Income
(“SSI”) benefits. Burke contends that the Administrative Law Judge (“ALJ”) did not
properly evaluate his mental impairments because the ALJ did not complete a Psychiatric
Review Technique Form (“PRTF”). Burke also argues for remand and reconsideration of
the denial of benefits based on the SSA’s grant of SSI benefits for an application he filed
after the ALJ’s decision in this case. Because ALJs are no longer required to use a PRTF
when assessing an applicant’s mental impairments and because the subsequent grant of
benefits is not material to the present case, we affirm the decision of the district court.
No. 08‐2043 Page 2
In 1987 the Social Security Administration found Burke eligible for SSI benefits based
on alcohol and drug abuse. Burke’s benefits were terminated in 1997, however, due to a
decrease in the medical severity of his condition and a change in the Social Security Act
prohibiting benefits if drug addiction or alcoholism was a material factor to the
determination of disability. See 20 C.F.R. §§ 404.315(b). After his benefits ended, Burke filed
applications for SSI benefits in 1997 and 1999; both were denied. There is no indication that
Burke pursued these applications any further. This case is based on Burke’s application for
benefits filed in 2000.
Burke suffers from multiple physical and mental limitations, including diabetic
neuropathy, chronic obstructive pulmonary disease, a degenerative back condition, learning
disabilities, adjustment disorder, and a history of substance abuse. Burke has worked in the
past as a tire repairman and as a caregiver in a home for the elderly and disabled but is not
currently employed. Burke’s primary daily activity is watching TV. He leaves his home as
needed to visit friends and keep appointments; sometimes he goes out to eat and rarely he
engages in other hobbies, church events, and volunteer activities.
With respect to his mental impairments, Burke has been examined by several
psychologists and one psychiatrist. In 2000 psychologist Dr. Joel Eckert diagnosed Burke
with adjustment disorder and borderline intellectual functioning with an I.Q. of 70‐85. Dr.
Eckert concluded that, given his extensive history of substance abuse, Burke would not be
able to manage his disability benefits. In 2004 psychologist Dr. Mac Bradley examined
Burke and concluded that “he did not have psychological conditions that would
significantly impair his ability to perform work‐related activities.” Later that year Dr. Alvin
House found that Burke was “alert and adequately oriented” and had fair concentration,
verbal comprehension, and a normal mood. In 2005, in contrast to the findings of Drs.
Bradley and House, psychiatrist Dr. Hayng‐Sung Yang found Burke to be at 50 on the
Global Assessment of Functioning scale, a score that ordinarily means that the individual’s
mental disorder precludes him from finding and keeping work.
After a hearing in 2002, the ALJ denied Burke’s application for SSI benefits. Upon
Burke’s request for review, the Social Security Appeals Council (“Appeals Council”)
vacated the ALJ’s decision and remanded the case for further development of the record. In
2005 the ALJ held a supplemental hearing on the 2000 application during which Burke and
a vocational expert testified. In 2006 the ALJ again denied Burke’s application for benefits,
finding that he could perform a number of jobs despite his limitations. Specifically, the ALJ
found that Burke’s physical and mental impairments, while severe, did not meet any of the
impairments listed in the regulations, which constitute presumed disabilities. Regarding
Burke’s mental impairments, the ALJ found that he had mild to moderate limitations in
performing daily activities and in maintaining social functioning; he would have difficulty
No. 08‐2043 Page 3
in concentration, persistence, and pace with complex instructions, but would not be limited
in performing simple, repetitive tasks; and he had no record of episodes of deterioration or
decompensation when attempting work or in work settings. The ALJ concluded that
Burke’s residual functional capacity (“RFC”) allows him to perform a reduced but
significant range of sedentary work that exists in significant numbers in the national
economy. The Appeals Council denied Burke’s second request for review of the ALJ’s
decision. Burke filed a request for review in the district court, and in March 2008 the court
granted the defendant’s motion for summary affirmance and affirmed the ALJ’s decision
denying benefits.
ALJs follow a five‐step analysis when making a determination of disability for SSI
benefits. See 20 C.F.R. § 416.920(a)(4); Craft v. Astrue, 539 F.3d 668, 674‐75 (7th Cir. 2008);
Fast v. Barnhart, 397 F.3d 468, 469‐70 (7th Cir. 2005). On appeal Burke argues that the ALJ in
his case erred at step three of the analysis by failing to include a PRTF as required by the
regulations and Stambaugh v. Sullivan, 929 F.2d 292 (7th Cir. 1991). As a result, he contends,
the ALJ did not properly evaluate his mental impairments, and thus the ALJ’s conclusion
that he could work was flawed. This court defers to the ALJ’s factual findings and will
affirm the ALJ’s decision so long as it is supported by substantial evidence. See Schmidt v.
Astrue, 496 F.3d 833, 841 (7th Cir. 2007); Prochaska v. Barnhart, 454 F.3d 731, 734 (7th Cir.
2006).
In Stambaugh this court held that the ALJ’s determination that the applicant did not
suffer from a mental impairment was in error because the ALJ failed to complete a standard
document outlining the steps of the mental impairment assessment. Stambaugh, 929 F.2d at
296. But the regulation on which Stambaugh relied was subsequently amended to eliminate
the requirement of a standard document. See 20 C.F.R. § 404.1520a(d); 416.920a(d). This
amendment took effect prior to Burke’s 2000 application. Now, instead of completing a
PRTF, the ALJ only has to document use of the “special technique” set forth in 20 C.F.R. §
416.920a. See Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008); Branum v. Barnhart,
385 F.3d 1268, 1272 (10th Cir. 2004). The technique requires the ALJ to determine if the
applicant has a “medically determinable mental impairment,” id § 416.920a(b)(1), and if so,
to rate the applicant’s degree of functional limitation in four areas: activities of daily living;
social functioning; concentration, persistence, or pace; and episodes of decompensation, id.
§ 416.920a(c)(3). See Carpenter, 537 F.3d at 1268; Branum, 385 F.3d at n.4. Using the ratings
in the four functional areas, the ALJ determines whether the applicant’s mental
impairments meet a listed mental disorder. Id. § 416.920a(d)(2). If the mental impairments
do not meet any listed impairment, the ALJ will assess the applicant’s RFC, which is then
used in steps four and five of the disability analysis. Id. § 416.920a(d)(3).
No. 08‐2043 Page 4
Burke argues that the new rule eliminating the PRTF requirement expired in July
2001, at which time a PRTF once again became mandatory for evaluating mental
impairments. Burke points to the rule stating: “The revised adult mental disorders listings
(and other listings) in these rules will be effective until July 2, 2001, unless they are extended
by the Commissioner or revised and promulgated again.” Revised Medical Criteria for
Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50,747 (Aug. 21,
2000). The July 2001 expiration date, however, is meant to ensure that the regulation’s
listing of impairments keeps pace with medical advancements. See id. at 50,746. Even if the
expiration date applied to the special technique for assessing mental impairments, the
Commissioner of Social Security made the mental disorders listings effective until July 1,
2010. See Extension of the Expiration Date for Several Body Systems Listings, 73 Fed. Reg.
31,025 (May 30, 2008). The rules, therefore, did not require the ALJ to complete a PRTF
before denying Burke’s application for benefits.
Finally, Burke does not challenge the ALJ’s performance of the special technique to
assess his mental impairments. In this case the ALJ properly performed the special
technique by rating Burke in the four functional areas and provided a finding as to the
degree of limitation in each of the areas. See Craft, 539 F.3d at 675. The ALJ concluded that
Burke’s substance abuse and learning disorder did not meet a listed impairment and thus
continued to steps four and five of the disability analysis to determine Burke’s RFC. The
ALJ found that Dr. Yang’s assessment of Burke as extremely limited in performing work
activities was inconsistent with medical evidence and Burke’s own testimony. See Bradley v.
Astrue, 528 F.3d 1113, 1115‐16 (8th Cir. 2008); Reed v. Barnhart, 399 F.3d 917, 920‐23 (8th Cir.
2005); Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). In addition, the ALJ also
found that Dr. Yang’s examination most likely coincided with one of Burke’s drinking
binges, which, by contributing to Dr. Yang’s diagnosis, would be a material factor
precluding a finding favorable to Burke. (ALJ Decision 1/27/2006 at 8.) In sum, the ALJ
properly performed the special technique to assess Burke’s mental impairments.
After filing his appellate brief, Burke filed a Motion to Take Judicial Notice of
Inconsistencies. In this motion, Burke contends that the SSA granted him disability benefits
based on a 2007 application and, thus, its earlier decision denying him benefits must have
been in error. This argument fails for two reasons. First, Burke failed to move for remand
on the basis of new evidence under sentence six of 42 U.S.C. § 405(g) in the district court
and as a result waived the right to request such relief before this court. Second, Burke’s
argument is not supported by the unpublished district court case he cites. In that case,
Martin v. Astrue, No. 07‐cv‐1036 (C.D. Ill. May 29, 2008), the court remanded the denial of
benefits for further consideration by the SSA because the benefits granted for a later
application began retroactive to one day after the ALJ’s decision denying benefits on the
first application. Even if Martin were controlling, the circumstances of Burke’s denial of
No. 08‐2043 Page 5
benefits differ from that case. Burke did not show that he received retroactive benefits
based on his 2007 application. Indeed the only documentary evidence Burke submitted
regarding his subsequent benefits shows benefits going back only to July 2008, more than
two years after the ALJ’s decision denying benefits. Therefore, any evidence that Burke
submitted in his 2007 application for benefits is not material to the denial of his 2000
application, and remand is unnecessary based on the SSA’s subsequent grant of benefits.
AFFIRMED.