1

The Honorable Richard W. Goldberg, Judge of the United States Court of

International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-3866

___________

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. *

___________

Submitted: April 10, 2000

Filed: July 28, 2000

___________

Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and GOLDBERG,1

Judge.

___________

WOLLMAN, Chief Judge.
2The 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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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
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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
3Borderline 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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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.
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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.