United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3866
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Herman Roberts, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kenneth S. Apfel, Commissioner, *
Social Security Administration, *
*
Appellee. *
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Submitted: April 10, 2000
Filed: July 28, 2000
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Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and GOLDBERG,1
Judge.
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WOLLMAN, Chief Judge.
1
The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
Herman Roberts appeals from the district court’s2 judgment affirming the denial
of his application under the Social Security Act for disability insurance benefits
pursuant to Title II, 42 U.S.C. §§ 416(i) & 423, and for supplemental security income
pursuant to Title XVI, 42 U.S.C. § 1381a. We affirm.
I.
Roberts was born on November 5, 1962, and has an eighth-grade education and
Job Corps training in sheetrock finishing. His past relevant work experience includes
that of a sheetrock finisher, painter, cook, janitor, maintenance worker, and laborer.
Roberts protectively filed his application for benefits on December 20, 1994, alleging
an onset disability date of December 9, 1994. Roberts asserts that he is unable to work
because of a learning disability and back problems.
The Social Security Administration denied Roberts’s application initially and
again on reconsideration. Roberts then requested and received a hearing before an
administrative law judge (ALJ). The ALJ evaluated Roberts’s claim according to the
five-step sequential analysis prescribed by the social security regulations. See 20
C.F.R. §§ 404.1520(a)-(f); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987)
(describing analysis). The ALJ held that Roberts had not engaged in substantial gainful
activity since December of 1994 and had the following impairments: central disc
herniation at L5-S1, borderline intellectual functioning, and chronic alcohol abuse. The
ALJ determined that this combination of limitations did not meet or equal a listed
impairment but did prevent Roberts from returning to his past relevant work. The ALJ
also found that although Roberts’s impairments preclude him from jobs that require
2
The Honorable Stephen M. Reasoner, United States District Judge for the
Eastern District of Arkansas, adopting the findings and recommendations of the
Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District
of Arkansas.
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heavy, strenuous physical activity, extensive written instructions, complex tasks, or
high levels of judgment, Roberts retains sufficient residual functional capacity to
perform a limited range of sedentary and light work, and thus that Roberts was not
disabled within the meaning of the social security regulations.
The Social Security Appeals Council denied Roberts’s request for further
review; therefore the ALJ’s judgment became the final decision of the Commissioner
of the Social Security Administration. Roberts then sought review in the district court,
which granted summary judgment in favor of the Commissioner. Roberts now appeals,
arguing that the ALJ erroneously determined how his mental impairments affect his
residual functional capacity and that the hypothetical question asked by the ALJ was
flawed because it failed to include the full extent of his mental limitations.
II.
Our role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence on the record as a whole. See Prosch v. Apfel, 201
F.3d 1010, 1012 (8th Cir. 2000). Substantial evidence is less than a preponderance,
but is enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion. See id. In determining whether existing evidence is
substantial, we consider evidence that detracts from the Commissioner’s decision as
well as evidence that supports it. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.
2000). As long as substantial evidence in the record supports the Commissioner’s
decision, we may not reverse it because substantial evidence exists in the record that
would have supported a contrary outcome, see id., or because we would have decided
the case differently. See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
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A.
Roberts argues that the ALJ’s determinations regarding the effect of his mental
impairments are flawed because they are not based on substantial evidence in the
record and because the ALJ reached his conclusion without following proper
procedure. The ALJ determined that although Roberts’s intellectual functioning is
borderline deficient and he cannot read well, he has also spent his working life with the
same mental capabilities. Thus, the ALJ concluded that Roberts could perform work
that has intellectual requirements similar to or less taxing than those of jobs that he has
performed in the past. The ALJ also found that although Roberts currently may be
suffering from depression, the disorder appears to be situationally related (that is,
related to not having a job and income) because the evidence does not document any
diagnosable anxiety or organic mental disorder. Accordingly, the ALJ found that
Roberts’s mental capabilities preclude him only from that work which requires
extensive written instructions, complex tasks, or high levels of judgment.
As support for his argument about the lack of substantial evidence, Roberts
points us to an analysis performed by Disability Determination Services (DDS)
physicians, who concluded that Roberts’s mental impairments moderately limit him in
the areas of concentration, persistence, or sustained pace. He argues that the ALJ
improperly concluded that Roberts’s mental deficiencies, in combination with his
physical impairments, do not render him disabled, contending that the ALJ may not
disregard the DDS physicians’ assessment because of what may seem to be the
contrary evidence of his daily activities.
We conclude that substantial evidence in the record supports the ALJ’s decision.
An ALJ bears the primary responsibility for assessing a claimant’s residual functional
capacity based on all relevant evidence, see Anderson v. Shalala, 51 F.3d 777, 779 (8th
Cir. 1995), and here the ALJ properly examined the evidence in the record. The ALJ
noted that Roberts successfully had held employment for many years with the cognitive
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abilities he currently possesses. Indeed, Roberts had most success with employment
in the trade of sheetrock finishing, in which he had been trained by Job Corps,
demonstrating that he is capable of receiving and successfully applying job skill
training. The ALJ also recorded how Roberts’s mental impairments did not prevent
him from engaging in substantial activities of daily living: Roberts cares for his family,
performs household chores, drives a car, visits friends, plays games such as dominoes
and cards with his friends, and plays catch with his son. Roberts also pays bills, passed
an oral drivers’ license exam, and testified that he could follow the instructions
necessary for making a cake. The ALJ further noted that Roberts is able to
communicate and to behave appropriately, is capable of using judgment, and has no
disturbance in his thinking or deficiencies in memory.
The medical evidence also supports the ALJ’s conclusion. The absence of any
evidence of ongoing counseling or psychiatric treatment or of deterioration or change
in Roberts’s mental capabilities disfavors a finding of disability. See Dixon v. Sullivan,
905 F.2d 237, 238 (8th Cir. 1990) (“[The claimant] worked with his impairments over
a period of years without any worsening of his condition. Thus, he cannot claim them
as disabling.”). In January of 1995, Dr. James Moneypenny, a psychologist,
administered to Roberts the Wechsler Adult Intelligence Scale-Revised, on which
Roberts obtained a full scale intelligence quotient (IQ) score of 80.3 This score places
him in the range for borderline intellectual functioning, which, according to Dr.
3
Borderline intellectual functioning is a condition defined as an IQ score within
the 71-84 range, while mental retardation is a score of about 70 or below. See
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 39-40, 684 (4th ed. 1994). “To put the term [borderline intellectual
functioning] in perspective, the Social Security Administration considers a person with
an IQ of 59 or less presumptively disabled,” Thomas v. Sullivan, 876 F.2d 666, 668 n.1
(8th Cir. 1989), and a person with an IQ of 60 through 70 with some other physical or
mental impairment imposing work-related limitations presumptively disabled. 20
C.F.R. Part 404, Subpt. P, App. 1, 12.05C.
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Moneypenney’s report, does not suggest a specific learning disability. An assessment
by Arkansas Rehabilitation Services in May of 1995, which was based on a battery of
other intelligence tests, concluded that although Roberts was functioning within the
average range of intelligence, he may have difficulty with reading, comprehending
written instructions, and math, and thus require verbal direction or hands-on job
training. The conclusion of the DDS physicians--that Roberts suffers deficiencies in
the areas of concentration, persistence, and pace--is not inconsistent with that of the
ALJ, who found that Roberts has mental impairments that would preclude him from
performing work that required constant reading of instructions, complex tasks, or high
levels of judgment. To the contrary, the DDS physicians concluded that Roberts could
perform work in which interpersonal contact is routine but superficial and in which
tasks are no more complex than those that can be learned through experience or
training. Accordingly, we conclude that the ALJ’s decision is supported by substantial
evidence.
Additionally, Roberts urges us to reverse on procedural grounds because the ALJ
failed to attach to his opinion a completed Psychiatric Review Technique Form (PRTF),
which “is a standard document which generally must be completed when a claimant
alleges a mental impairment.” Mapes v. Chater, 82 F.3d 259, 262 n.8 (8th Cir. 1996).
The Commissioner points out that Roberts did not make this argument before the
magistrate judge, and argues that Roberts therefore should be barred from presenting
it for the first time on appeal. Roberts argues that because he raised the claim in his
objections to the magistrate judge’s proposed findings, which are reviewed by the
district court de novo, we should consider the issue to have been properly raised below.
We disagree.
Although Roberts need not raise every argument to the Appeals Council to
preserve his claims for judicial review, see Sims v. Apfel, 530 U.S. __, ___, 120 S. Ct.
2080, 2084 (2000), it is well established that, unless a manifest injustice would result,
a claim not articulated to the district court is subject to forfeit on appeal. See Craig,
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212 F.3d at 437, Misner v. Chater, 79 F.3d 745, 746 (8th Cir. 1996). The question,
then, is whether a claimant may make arguments in his objections to a magistrate
judge’s report when those arguments have been neither argued to the magistrate judge
nor addressed in the judge’s report adopted by the district court, and then obtain review
of them on appeal.
We conclude that Roberts’s situation is tantamount to those in which a claimant
raises on appeal an argument not presented to the district court. We have stated that
the “purpose of referring cases to a magistrate for recommended disposition would be
contravened if parties were allowed to present only selected issues to the magistrate,
reserving their full panoply of contentions for the trial court.” Reciprocal Exch. v.
Noland, 542 F.2d 462, 464 (8th Cir. 1976). Other courts of appeals have held in the
context of a social security case that a claimant must present all his claims squarely to
the magistrate judge, that is, the first adversarial forum, to preserve them for review.
See, e.g., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (issues first raised
in objections deemed waived); Greenhow v. Secretary of Health & Human Servs., 863
F.2d 633, 638 (9th Cir. 1988) (Magistrates Act not “intended to give litigants an
opportunity to run one version of their case past the magistrate, then another past the
district court.”), overruled in part on other grounds, United States v. Hardesty, 977 F.2d
1347, 1348 (9th Cir. 1992) (en banc) (per curiam); Borden v. Secretary of Health &
Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (per curiam) (“Parties must take before the
magistrate, ‘not only their best shot but all of their shots.’”) (internal quotation marks
and citation omitted)). To hold otherwise would allow a claimant to raise new claims
to the district court and thus effectively have two opportunities for judicial review.
Accordingly, in the absence of a showing by Roberts that a manifest injustice would
result from our failure to do so, we decline to address Roberts’s contention that the ALJ
erred in failing to attach a completed PRTF.
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B.
Roberts next contends that the ALJ’s determination that he retains the ability to
perform a significant number of jobs within the category of sedentary and light work
is not supported by substantial evidence because the ALJ relied on the vocational
expert’s response to a flawed hypothetical question. Roberts also points out that the
ALJ failed to expressly acknowledge the shifting of the burden to the Commissioner
at this step of the sequential analysis.
“Testimony from a vocational expert is substantial evidence only when the
testimony is based on a correctly phrased hypothetical question that captures the
concrete consequences of a claimant’s deficiencies.” Taylor v. Chater, 118 F.3d 1274,
1278 (8th Cir. 1997). Although “questions posed to vocational experts should
precisely set out the claimant’s particular physical and mental impairments, . . . a
proper hypothetical question is sufficient if it sets forth the impairments which are
accepted as true by the ALJ.” House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994)
(internal citations, quotation marks, and alterations omitted). We will reverse where
the ALJ fails to acknowledge the shift in burden to the Commissioner in determining
if the claimant can perform a significant number of jobs in the national economy except
in those cases in which the evidence is so strongly against the claimant that “the
outcome is clear regardless of who bears the burden of proof.” Butler v. Secretary of
Health & Human Servs., 850 F.2d 425, 426 (8th Cir. 1988); see Pope v. Bowen, 886
F.2d 1038, 1040 (8th Cir. 1989).
The hypothetical question that the ALJ posed to the vocational expert assumed
an individual with Roberts’s age, education, work experience, physical limitations,
additional impairments of depression and a diminished reading ability, and the
functional limitation that Roberts could do “no job requiring frequent, extensive or
[constant] reading of written instructions....” The vocational expert responded that
although such an individual could not perform Roberts’s past work, he could perform
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a range of jobs within the sedentary category, such as laborer and small parts
assembler. The functional limitations of the ALJ’s hypothetical question involving
Roberts’s intellectual deficiencies were based upon Roberts’s limitations as the ALJ
had previously determined them, thus capturing the concrete consequences of Roberts’s
impairments, and thus we find no error. We therefore conclude that the ALJ’s
determination that Roberts could perform a range of jobs in the national economy is
supported by substantial evidence.
Lastly, Roberts argues that the ALJ’s failure to acknowledge the shifting burden
requires us to reverse. Although Roberts did not raise the issue before the magistrate
judge, the judge noted this deficiency but held that it did not constitute reversible error
because the evidence “is so strongly against” Roberts’s position. See Pope, 886 F.2d
at 1040. Roberts relies heavily on the DDS physicians’ observations about his
difficulty with persistence, concentration, and pace to support his argument that not all
the evidence is against him, but as noted above, the DDS physicians also concluded
that Roberts was not disabled and could perform work involving routine and superficial
interpersonal contact and tasks that are no more complex than those that may be
learned through training. Moreover, the vocational expert also opined that the jobs he
suggested do not involve strict industrial standards for pace or productivity such as
would be involved in assembly line jobs. Accordingly, any failure on the ALJ’s part
to acknowledge that the burden had shifted to the Commissioner is not grounds for
reversal.
The judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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