                              UNPUBLISHED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Reversed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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