United States District Court, S.D. Mississippi.
For Herbert Brown, Plaintiff: Ricky Brian Clark, LEAD ATTORNEY, RICKY B. CLARK, ATTORNEY, Forest, MS.
For Social Security Administration, Michael J. Astrue, Commissioner, Defendant: David N. Usry, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE - Jackson, Jackson, MS.
Daniel P. Jordan III, UNITED STATES DISTRICT JUDGE.
This cause is before the Court on the Report and Recommendation  of the United States Magistrate Judge, after referral of hearing by this Court. Magistrate Judge Ball considered the parties' submissions and concluded that Defendant's Motion to Affirm the Decision of the Commissioner  should be granted and Plaintiff's Motion for Summary Judgment  should be denied. Plaintiff filed a timely Objection  to the Report and Recommendation, and the Commissioner filed a Response . After reviewing the findings in the Report and Recommendation, together with Plaintiff's Objection and the Commissioner's Response, and being otherwise duly advised in the premises, the Court concludes that the Report and Recommendation should be adopted as the opinion of this Court.
In his Report and Recommendation, Judge Ball concluded that the Administrative Law Judge determined that Plaintiff does not suffer from any medically-determinable organic mental impairment, that substantial evidence supported that determination, and that substantial evidence
therefore supported a finding that Plaintiff does not suffer from a severe organic mental impairment. Plaintiff's Objection raises three separate issues, the latter two of which flow from the former: (1) the conclusion that Plaintiff does not suffer from a severe mental impairment is not supported by substantial evidence, (2) the Residual Functional Capacity arrived at by the ALJ, which did not incorporate limitations resulting from the alleged severe mental impairment, is therefore not supported by substantial evidence, and (3) due to " the presence of a vocationally significant mental impairment, the ALJ could not properly use the vocational rules of Appendix 2, Subpart P, of Social Security Regulations No. 4 to direct a conclusion that the Plaintiff is not disabled." Objection  at 2.  Because the Court agrees that substantial evidence supported the ALJ's conclusion that Plaintiff suffered from no " medically significant [mental] impairment," Plaintiff's second and third objections need not be addressed. Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990) (citing Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987)).
Plaintiff asserts that " the record contains three sources of information with regard to mental limitations," pointing to Plaintiff's school records and the reports of Drs. Bill Spears and Lisa Yazdani. Objection  at 3. Significantly, Plaintiff never identifies a diagnosis of any particular mental impairment, and the sparse medical record is devoid of any diagnosis.  Nor has Plaintiff pointed to any evidence suggesting he ever complained of any mental impairments or sought treatment therefor. And Plaintiff bears the burden of establishing that he suffers from a medically determinable impairment that renders him disabled. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994); see 20 C.F.R. § 404.1508 (" A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms." ). The ALJ's conclusion that he failed to do so is supported by substantial evidence, as fully explained by Judge Ball. See Report and Recommendation  at 8 (" Dr. Yazdani's report provides substantial evidence for a finding that Plaintiff suffers from no medically-determinable organic mental impairment . . . ." ).
Turning to the one piece of evidence relied upon by Plaintiff and not specifically addressed by Judge Ball, Plaintiff's school records indicate that he was in special education classes through ninth grade, ultimately failed tenth grade, and, at almost 17 years old, had a fifth grade vocabulary and comprehension level. R.  at 125-26. Plaintiff apparently suggests that his school records establish an intellectual deficiency that renders him disabled. But " [a]lthough mental retardation qualifies as a non-exertional impairment, [b]elow-average intelligence alone does not constitute a non-exertional impairment." Arce v. Barnhart, 185 F. App'x 437, 439 (5th Cir. 2006) (internal quotation marks omitted) (citing Selders, 914 F.2d at 619); see 20 C.F.R. Pt. 404, Subpt. P, App. 1 at 12.05 (defining mental retardation as " significantly subaverage general intellectual functioning with deficits in adaptive functioning" ). 
Plaintiff asserts that the ALJ should have further developed the facts regarding Plaintiff's mental limitations. Objection  at 7. Plaintiff cites Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995), for the proposition that the ALJ " has a duty to develop the facts fully and fairly relating to an applicant's claim for disability benefits." The Ripley court went on to explain that the ALJ " [u]sually . . . should request a medical source statement describing the types of work that the applicant is still capable of performing" in fulfilling this duty. Id. But that is precisely what occurred. Dr. Yazdani completed an Assessment of Ability to Do Work-Related Activities (Mental) based on her examination of Plaintiff. R.  at 161-63. Her report complied with 20 C.F.R. § 404.1513(c)(2) (describing items that should be contained in a ...