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Case 3:12-cv-01800-N-BH Document 22 Filed 09/20/13 Page 1 of 3 PageID 567

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Plaintiff,

v.

WILLIE BAILEY,

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§ Civil Action No. 3:12-CV-1800-N (BH)
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CAROLYN W. COLVIN,
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ACTING COMMISSIONER OF THE
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SOCIAL SECURITY ADMINISTRATION, §
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§ Referred to U.S. Magistrate Judge

Defendant.





ORDER

Before the Court are the Findings, Conclusions, and Recommendations of the United States

Magistrate Judge (doc. 20 (FCR)) and Plaintiff’s objections thereto (doc. 21 (Obj.)). After

reviewing all relevant matters of record in this case, including the FCR and Plaintiff’s objections,

the Court finds that the Findings and Conclusions of the Magistrate Judge are correct and they are

accepted as the Findings and Conclusions of the Court.

The Court reviews the pleadings, filings and records of the case, and the FCR of the

Magistrate Judge de novo. See 28 U.S.C. § 636(b)(1); Montgomery v. Astrue, No. 3:09-CV-1194-O,

2010 WL 3583380, at *1 (N.D. Tex. Sept. 13, 2010). In addition, the scope of judicial review of an

Administrative Law Judge’s (ALJ) decision to deny benefits is “limited to determining whether the

decision is supported by substantial evidence in the record and whether the proper legal standards

were used in evaluating the evidence.” Castillo v. Barnhart, 325 F.3d 550, 551 (5th Cir. 2003)

(quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990)); Montgomery, 2010 WL 3583380,

at *1.

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Case 3:12-cv-01800-N-BH Document 22 Filed 09/20/13 Page 2 of 3 PageID 568

Plaintiff contends that the ALJ erred in finding that his mental disorder did not meet the

severity criteria of Listing 12.05 for intellectual disability (mental retardation) because the ALJ

made “no findings whatsoever regarding Plaintiff’s mental retardation and whether the evidence of

record demonstrate[d] that he ... had significantly subaverage intellectual functioning and deficits

in adaptive behavior prior to the age of 22.” (Obj. at 2.) He claims this was legal error under Audler

v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007).

The “introductory paragraph” of Listing 12.05 requires that the claimant exhibit

“significantly subaverage general intellectual functioning with deficits in adaptive functioning

initially manifested during the developmental period; i.e., the evidence demonstrates or supports

onset of the impairment before age 22.” See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.05A (2012)

(emphasis added). Under the Social Security Act, “mental” impairment is “an impairment that

results from ... psychological abnormalities which are demonstrable by medically acceptable clinical

and laboratory diagnostic techniques.” 42 U.S.C.A. § 423(d)(3) (West 2004); Gibbons v. Colvin, No.

3:12-CV-0427-BH, 2013 WL 1293902, at *16 (N.D. Tex. Mar. 30, 2013).

Here, Plaintiff claims that his mental disorder met Listing 12.05 based on his lower IQ scores

during Dr. Horton’s evaluation and his testimony that he was enrolled in special education classes

in high school (i.e., that he had subaverage general intellectual functioning with deficits in adaptive

functioning initially manifested before age 22). (Pl. Br. (doc. 16-1) at 4–5); (Obj. at 2).

Nevertheless, Plaintiff failed to demonstrate, “by medically acceptable clinical and laboratory

diagnostic techniques,”1 that his alleged mental impairment began before he turned 22. See 42

U.S.C.A. § 423(d)(3); 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.05. Plaintiff did not even produce his

1 Plaintiff even concedes that all of “the consulting physicians ... provided evidence regarding Plaintiff’s

current mental status, not his past mental status.” (Obj. at 2.)

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Case 3:12-cv-01800-N-BH Document 22 Filed 09/20/13 Page 3 of 3 PageID 569

high school records, contending that when he requested them from the school, he was told they were

not “there any more.” (R. at 32–33.) Because the ALJ was not required to consider, and much less

discuss, whether Plaintiff’s mental disorder met Listing 12.05, he did not err under Audler.

It is therefore ORDERED that the Findings, Conclusions, and Recommendation of the

United States Magistrate Judge are adopted. Accordingly, Plaintiff’s Motion for Summary

Judgment, filed September 20, 2012 (doc. 16) is DENIED, Defendant’s Motion for Summary

Judgment, filed October 17, 2012 (doc. 17), is GRANTED, and the decision of the Commissioner

is wholly AFFIRMED.

SO ORDERED on this 20th day of September 2013.

____________________________________
DAVID GODBEY
UNITED STATES DISTRICT JUDGE

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