Crowe v. SSA
Filing
16
MEMORANDUM OPINION & ORDER: (1) 12 , 13 MOTION for Summary Judgment is DENIED. (2) 15 MOTION for Summary Judgment is GRANTED. (3) Judgment in favor of the Dft will be entered. Signed by Judge Joseph M. Hood on 8/20/2018.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
CHARLES B. CROWE,
Plaintiff,
v.
NANCY C. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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Civil Case No.
5:17-cv-410-JMH
MEMORANDUM OPINION & ORDER
***
Plaintiff Charles Crowe brings this matter under 42 U.S.C.
§ 405(g) seeking judicial review of an administrative decision of
the Acting Commissioner of Social Security.
The Court, having
reviewed the record and the motions filed by the parties, will
AFFIRM the Commissioner’s decision as no legal error occurred and
it is supported by substantial evidence.
I.
Under the Social Security Act, a disability is defined as
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”
42 U.S.C. § 423(d)(1)(A).
In determining disability, an
Administrative Law Judge (“ALJ”) uses a five-step analysis.
See
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
Step
One
considers
substantial
claimant’s
gainful
whether
the
activity;
impairments
are
claimant
Step
“severe”;
is
Two,
still
whether
Step
Three,
performing
any
of
the
whether
the
impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform his past relevant
work; and Step Five, whether significant numbers of other jobs
exist in the national economy which the claimant can perform.
As
to the last step, the burden of proof shifts from the claimant to
the Commissioner.
Id.; see also Preslar v. Sec’y of Health & Human
Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
Plaintiff filed an application for Title XVI Supplemental
Social
Security
Insurance
Benefits
disability as of January 1, 2013.
in
May
2014,
[TR 179, 192].
denied initially and upon reconsideration.
asserting
The claim was
[TR 111, 118].
Crowe
then pursued his claims at a hearing in front of an ALJ in May
2016.
[TR 36–76].
ALJ Ronald Kayser issued a decision in June
2016, denying Crowe’s claims and finding he was not disabled.
[TR
20–31]. The Appeals Council denied review. [TR 1–6]. This appeal
followed pursuant to 42 U.S.C. § 405(g).
Consistent with the
Court’s Standing Scheduling Order, the parties have submitted
cross motions for summary judgment, which are ripe for review.
[DE 12, 13, 15].
2
Crowe alleges onset of disability at age 34. [TR 179].
has a tenth-grade education.
[TR 41–42].
He
In high school, Crowe
was enrolled in special education classes in math. [TR 42]. Crowe
engaged in past relevant work as an auto detailer, groundskeeper,
housekeeper, and pressure washer.
Crowe
claims
disability
impairments—including
MRSA,
[TR 43-46, 71–72, 197–98].
due
head
to
trauma,
several
physical
degenerative
disk
disease, and shoulder impairments—and a learning disability.
196].
[TR
At the hearing in front of the ALJ, Crowe testified that
injuries to his back and shoulder are currently keeping him from
working.
[TR 48].
Crowe reports suffering injuries to his back,
a fractured skull, and memory problems after being thrown from a
moving vehicle in April 2014.
[TR 28, 48, 53-54, 67-68].
Crowe also testified he lives with his girlfriend and relies
on her and food stamps for income.
testified
that
he
cigarettes per day.
watches
[TR 53].
TV
all
[TR 46–47].
day
and
smokes
He further
a
pack
of
He does not have a driver’s license
and depends on his mother-in-law1 to travel places.
[TR 57–58].
Crowe estimated he can lift about ten pounds. [TR 66].
Even so,
Crowe also testified that he can prepare simple meals, can use a
cell phone, assists with caring for pets, and can wash a few
1
Crowe is unmarried but has been in a relationship with his
current girlfriend for over twenty years and refers to her
mother as his mother-in-law. [TR 40, 47-48].
3
dishes.
[TR 54, 59-60, 67].
He also testified that he volunteers
in an office around five hours a week.
[TR 61-62].
In October 2014, Crowe was examined by Mary Genthner, a
certified clinical psychologist.
[TR 430-35].
Genthner performed
several cognitive tests and conducted a clinical interview.
431].
[TR
Crowe was found to have a verbal comprehension score of 61,
a perceptual reasoning score of 63, a working memory score of 63,
a
processing
[TR
speed
432-33].
score
Genthner
of
62,
diagnosed
and
full
Crowe
with
scale
an
IQ
of
56.
intellectual
disability of mild severity, an unspecified tic disorder, and
somatic symptom disorder.
[TR 433-34]. Genthner concluded that
Crowe’s
cognitive
intellectual
and
ability to perform certain tasks.
deficits
[TR 434-35].
could
limit
his
Two state agency
psychologists reviewed the record and did not find that Crowe met
or equaled Listing 12.05.
[TR 82-83, 86-89, 98-99, 102-04].
After the hearing and considering all the evidence, the ALJ
issued his decision on June 23, 2016.
[TR 23].
At Step One, the
ALJ determined that Crowe has not engaged in substantial gainful
activity since May 11, 2014.
[TR 25].
At Step Two, the ALJ found
that Plaintiff suffered from the following severe impairments:
intellectual disability, history of substance abuse, recurrent
MRSA infections, hepatitis, left rotator cuff tear, and possible
osteoarthritis.
[Id.].
But, at Step Three, the ALJ found that
none of those impairments or combination or impairment met or
4
medically equaled the severity of any of the listed impairments.
[TR 25–27].
In reaching this conclusion, ALJ Kayser found that
Plaintiff had not satisfied the criteria of Listings 12.02, 12.05,
and 12.09.
[TR 25].
Before proceeding to Step Four, the ALJ found
that Plaintiff had the residual functional capacity (“RFC”) to
perform
medium
work
as
defined
in
20
C.F.R.
§
416.967(c).
Specifically, the ALJ found Plaintiff could perform the following
tasks:
{L]ifting/carrying
50
pounds
50
pounds
occasionally
and
20
pounds
frequently;
standing/walking 6 hours in an 8-hour workday;
sitting 6 hours in an 8-hour workday; frequent
climbing ramps and stairs, balancing, stooping,
crouching,
kneeling,
and
crawling;
avoid
ropes/scaffolds/ladders and unprotected heights;
reaching overhead bilaterally frequently; would be
able to understand, remember, and carry out simple
instructions; make judgments that are commensurate
with
functions
of
unskilled
work;
respond
appropriately to supervision, coworkers, and work
situations so long as the work has no production
quota requirements; and be able to deal with
changes in routine work setting.
[TR 27].
The ALJ then concluded, at Step Four, that Crowe is capable
of
performing
past
relevant
work
as
an
auto
detailer,
groundskeeper, housekeeper, and pressure washer, which do not
require the performance of work-related activities precluded by
Crowe’s RFC.
[TR 30].
In addition, the ALJ determined that given
Crowe’s age, education, work experience, and RFC, “there are other
5
jobs that exist in significant numbers in the national economy
that the claimant also can perform.”
[Id.].
ALJ Kayser based his
conclusion on testimony from a vocational expert (“VE”) that
Plaintiff could be able to perform the requirements of occupations
such
as
kitchen
helper
(1,700
jobs
in
Kentucky,
454,000
nationally), laundry worker (700 in Kentucky / 48,000 nationally),
and packer (2,200 in Kentucky / 165,000 nationally).
[TR 31].
Thus, the ALJ determined Plaintiff was not disabled under the
Social Security Act.
Plaintiff argues the ALJ erred in finding Plaintiff did not
meet or equal Listings 12.05B and 12.05C.
[DE 13, p. 4].
Crowe
also argues his procedural due process rights were violated because
the ALJ cited an unpublished opinion in his decision.
9].
[Id. at p.
The Commissioner contends that the ALJ’s decision was proper
and should be affirmed.
III.
When reviewing the ALJ’s ruling, this Court may not “‘try the
case de novo, resolve conflicts in evidence, or decide questions
of credibility.’”
Ulman v. Comm’r of Soc. Sec, 693 F.3d 709, 713
(6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th
Cir. 2007)).
This Court determines only whether the ALJ’s ruling
is supported by substantial evidence and was made pursuant to
proper legal standards.
Cutlip v. Sec’y of Health & Human Servs.,
6
25 F.3d 284, 286 (6th Cir. 1994).
“Substantial evidence” is
defined as “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Id.
We are to
affirm the decision, provided it is supported by substantial
evidence, even if we might have decided the case differently.
See
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
IV.
A. Listing 12.05
As an initial matter, Listing 12.05 was revised in September
2016 with an effective date of January 17, 2017.
66,137,
66,138
(Sept.
26,
2016).
The
81 Fed. Reg.
Social
Security
Administration “expect[s] that [f]ederal courts will review [the
Commissioner’s] final decisions using the rules that were in effect
at the time [the Commissioner] issued the decision.” Id. at 66,138
n.1.
When the ALJ denies benefits and the Appeals Council denies
review, the ALJ’s decision is reviewed as the Commissioner’s final
decision.
20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42
U.S.C. § 405(h). Here, the ALJ’s decision was dated June 23, 2018.
Thus, the previous version of Listing 12.05 is applicable to this
review.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (effective
June 23, 2016).
Listing 12.05 covers the mental disorder of intellectual
disability.
20 C.F.R. pt. 404 subpt. P, app. 1, § 12.05.
7
To meet
the
12.05
listing
standard,
a
claimant
must
demonstrate
“significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested . . . before
age 22.”
Id.
Additionally, the claimant must meet the criteria
in subparts A, B, C, or D.
Id.
12.05B requires “[a] valid verbal,
performance, or full scale IQ of 59 or less.
Id.
12.05C requires
“[a] valid verbal, performance, or full scale IQ of 60 to 70 and
a physical or other mental impairment imposing an additional and
significant work-related limitation of function.”
Id.; see Foster
v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
“The
plaintiff
has
the
ultimate
burden
to
establish
an
entitlement to benefits by proving the existence of a disability
. . . .”
Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680,
683 (6th Cir. 1992).
A claimant must demonstrate impairment that
satisfies the diagnostic description of the listed impairment in
the introductory paragraph and any one of the four listings.
20
C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(A)(3); 12.05.
Crowe argues that the ALJ erred in finding Crowe did not meet
the criteria in Listing 12.05. [DE 13, p. 4]. Additionally, Crowe
argues that the ALJ applied an incorrect standard in determining
whether deficits in adaptive functioning exist.
Alternatively,
the Commissioner contends that the ALJ’s decision is supported by
substantial evidence and that the ALJ applied the correct legal
standard.
8
Substantial evidence exists to support the ALJ’s conclusion
that Crowe does not meet the listing for intellectual disability.
First, the evidence does not demonstrate or support the onset of
“significantly subaverage general intellectual functioning with
deficits in adaptive functioning” before age 22.
To
demonstrate
subaverage
intellectual
functioning
and
deficits in adaptive functioning before age 22, Crowe relies
heavily on the findings of Mary Genthner. [TR 429-35]. Genthner’s
findings show IQ scores that are in the “extremely low” range that
would meet the score requirements in 12.05B and 12.05C.
[TR 432-
33]. Genthner’s report stated that special education placement in
school could not be confirmed based on school records.
Furthermore,
while
Crowe
reported
early
social
[TR 433].
problems
and
anxiety, he noted no history of mental health treatment. [TR 431].
Finally, Genthner’s report notes that Crowe was unwell on the day
of the examination.
[TR 431].
Even so, the report does not conclusively demonstrate that
Crowe’s intellectual disability manifested before age 22.
Even if
the IQ tests in Genthner’s report were valid, the ALJ’s decision
is not reversible because “the mere fact of a qualifying IQ score
does not require that the ALJ find mental retardation . . . when
substantial
claimant’s
evidence
supports
allegations
of
the
her
9
contrary
conclusion
capabilities
are
not
or
the
deemed
credible.”
Courter v. Comm’s of Soc. Sec., 479 F. App’x 713, 721
(6th Cir. 2012); see Foster, 279 F.3d at 354.
As noted earlier, the record, including Genthner’s report,
was reviewed by two state agency psychologists.
89, 98-99, 102-04].
Neither state agency psychologist found that
Crowe met the criteria under 12.05.
04].
[TR 82-83, 86-
[TR 82-83, 86-89, 98-99, 102-
Additionally, Crowe has not demonstrated sustained treatment
for mental health issues in the past.
[TR 29; see 431].
Crowe
has also demonstrated past ability to perform unskilled work.
27; see 43-46, 71–72, 197–98].
[TR
Additionally, Crowe reported that
he can prepare simple meals, can use a cell phone, assists with
caring for pets, and can wash a few dishes.
[TR 54, 59-60, 67].
He also testified that he volunteers in an office around five hours
a week.
[TR 61-62].
Thus, substantial evidence exists in the
record to support the ALJ’s decision to discredit the opinion
evidence provided by Genthner based on other evidence in the record
that points to the opposite conclusion.
[TR 29].
Additionally, Crowe relies on his low high school test scores
and
placement
in
special
education
for
math
as
proof
intellectual disability during the developmental period.
p. 5; TR 206].
of
[DE 13,
But this information, without more, also fails to
demonstrate that Crowe’s intellectual disability manifested prior
to age 22.
See Hayes v. Comm’r of Soc. Sec., 357 Fed. App’x 672,
677 (6th Cir. 2009).
There could be numerous reasons for Crowe’s
10
poor academic performance in high school and his failure to
complete education past tenth grade.
See Foster v. Halter, 279
F.3d 348, 355 (6th Cir. 2001) (“The only evidence in the record
pertaining
to
this
issue
is
that
Foster
left
school
after
completing the ninth grade, but why Foster did not continue her
studies is unclear.”).
Crowe’s academic performance during high
school provides little evidence of an intellectual disability
during
the
developmental
period
and
standing
alone,
is
not
dispositive.
Furthermore, Crowe contends that “IQ scores should be deemed
lifelong.”
[DE 13, p. 5].
Still, there is ample evidence in the
record to suggest that Crowe’s intellectual functioning could have
changed or been impacted later in life.
The record indicates that
Crowe suffered a fractured skull and memory problems after being
thrown from a moving vehicle in April 2014.
67-68].
Crowe’s
intellectual
functioning
[TR 28, 48, 53-54,
could
have
been
significantly worsened by this accident in April 2014 and provides
further justification for the ALJ’s decision that Crowe has failed
to prove an intellectual disability before age 22.
Lastly, the ALJ recognized that there is no IQ testing in the
record prior to Crowe reaching age 22.
[TR 27].
Crowe argues
that the ALJ erroneously used this as a basis in determining the
Crowe did not meet 12.05.
[DE 13, p. 5].
The ALJ’s observation
is simply a statement of fact; the record indicates no IQ or
11
performance testing prior to Crowe reaching age 22.
See Foster,
279 F.3d at 354 (“[Claimant] has failed to show that her general
intellectual functioning was ‘significantly subaverage’ prior to
that age. None of her testing or evaluation was contemporaneous
with her developmental period.”).
More importantly, the ALJ did
not base the decision solely upon the lack of IQ testing prior to
age 22.
The ALJ’s finding that Crowe did not demonstrate an
intellectual disability or deficits in adaptive functioning that
initially manifested before age 22 is supported by relying on the
opinions of two state agency psychologists, a head injury suffered
by Crowe in April 2014, no history of mental health treatment,
Crowe’s past ability to perform unskilled labor, and a lack of IQ
of performance testing before Crowe turned 22.
Ultimately,
Genthner’s
report
and
Crowe’s
poor
academic
results in high school are insufficient to demonstrate that Crowe
suffers from subaverage general intellectual functioning with
deficits in adaptive functioning that manifested before age 22.
The ALJ’s decision that Crowe has not demonstrated intellectual
disability or deficits in adaptive functioning prior to age 22 is
supported by substantial evidence in the record.
Since Crowe has
failed to demonstrate that he had an intellectual disability prior
to age 22, he cannot meet Listing 12.05.
12
B. Proper Standard to Evaluate Deficits in Adaptive Functioning
Second,
standard
in
Crowe
argues
considering
that
the
whether
ALJ
Crowe
applied
meets
the
adaptive functioning requirement in Listing 12.05.
an
erroneous
deficits
in
[DE 13, p. 7-
8].
In the decision, the ALJ stated “the claimant does not have
significantly subaverage deficits in adaptive functioning . . . .”
[TR 27].
Crowe is correct that this articulation of the standard
for intellectual disability is not precisely correct per the text
of
12.05.
Still,
the
ALJ
stated
the
correct
standard,
“significantly subaverage general intellectual functioning with
deficits in adaptive functioning,” just a few sentences before his
imprecise statement of the standard.
[Id.].
Moreover, the ALJ’s analysis demonstrates that he applied the
correct standard in making his determination regarding deficits in
adaptive functioning in Listing 12.05.
The ALJ considered the
reports of the consultative examiners and observed that none of
the
examiners
[Id.].
had
noted
difficulty
communicating
with
Crowe.
The ALJ reviewed the report and findings of Genthner after
testing and examination of Crowe.
[Id.].
The ALJ considered the
academic history of Crowe in high school and questioned him about
his academic history during examination at an in-person hearing.
[Id.; see TR 41-42].
The ALJ considered Crowe’s personal life,
including his life at home, his relationship with his girlfriend
13
and mother-in-law, his relationship and role in raising his two
daughters, his ability to care for his personal needs, and his
ability to wash some dishes and cook simple foods.
40, 47-70].
[TR 27; see TR
The ALJ also considered Crowe’s occupational history
in making his determination, noting that Crowe had held multiple
unskilled positions and had earned in excess of $10,000 per year
in several years.
[TR 27; see 43-46].
numerous
and
factors
sources
of
In sum, the ALJ considered
information
in
making
his
determination about deficits in adaptive functioning as related to
Crowe. The ALJ applied the correct standard in Listing 12.05
pertaining to deficits in adaptive functioning and his conclusions
are supported by substantial evidence.
Ultimately, while Crowe’s IQ test scores qualify to meet the
standards in 12.05B, Crowe has failed to demonstrate that he had
“significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested . . . before
age 22.”
added).
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05 (emphasis
To succeed on his claim, Crowe must demonstrate that he
meets the capsule definition of intellectual disability found in
the first paragraph and then demonstrate that he meets at least
one of the requirements in A-D.
1 §§ 12.00(A)(3); 12.05.
20 C.F.R. Pt. 404, Subpt. P, App.
Since substantial evidence exists to
support the ALJ’s finding that Crowe did not demonstrate an
14
intellectual disability before age 22, the ALJ’s decision must not
be disturbed.
C. Procedural Due Process
Crowe perfunctorily argues that his procedural due process
rights were violated because the ALJ cited Masters v. Comm’r of
Soc.
Sec.,
No.
04-CV-570-JBC
(E.D.
Ky.
Mar.
29,
2006),
an
unpublished opinion. The relevant language from the ALJ’s decision
is:
In an unreported opinion, Virgil R. Masters v. Barnhart,
Civil Action No. 04-570-JBC (E.D. Ky. March 29, 2006),
Judge Jennifer Coffman noted that mental retardation “is
typified by ‘significant limitations in adaptive
functioning’ in at least two of the following [eleven]
skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources,
self-direction, functional academic skills, work,
leisure, health, and safety.”
[TR 27].
Crowe cites sparse authority in support and fails to develop
his due process argument, other than noting that procedural due
process applies to Social Security proceedings, explaining that
counsel was unable to locate the case on Westlaw’s electronic
database, and observing that the case cites the fourth edition of
the American Psychiatric Association Diagnostic and Statistical
Manual of Mental Disorders (“DSM”) instead of the fifth edition.
“[T]he Due Process Clause requires that an individual is
afforded notice and opportunity to be heard before deprivation of
a protected interest through adjudication.”
15
Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
In a Social
Security hearing, “due process requires that the proceedings be
full and fair.”
Ferriell v. Comm’r of Soc. Sec., 614 F.3d 611,
620 (6th Cir. 2010) (internal citations and quotations omitted).
To determine whether procedural due process is satisfied, a court
must look to three factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government's interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Crowe appears to argue that citation to the unpublished case
denied due process because the ALJ did not provide Crowe with a
copy of the opinion or make the text of the opinion part of the
record; thus, because the opinion was difficult to locate, a
procedural due process violation occurred.
[See DE 13, p. 9].
Apparently, the additional process Crowe advocates for is that the
ALJ either provide the text of the unpublished opinion to him
directly or at least introduce the text of the unpublished opinion
into the record.
Alternatively, Crowe appears to argue against
the use of unpublished case law as a general matter.
Under
affected
by
the
the
first
Eldridge
official
factor,
action
16
is
the
private
potentially
interest
great.
See
Ferriell, 614 F.3d at 620.
disability
benefits
and
Crowe has pursued his claim for
has
been
denied
initially,
upon
reconsideration, by an ALJ after a hearing, and review was denied
by the Appeals Council.
[TR 111, 118, 20-31, 1-6].
The Court
understands that the decision of the ALJ and the subsequent
decision of this Court has a substantial impact upon the financial
resources of the Plaintiff.
Still, there has been no procedural due process violation
here because the cited unpublished opinion in the ALJ’s decision
was available to Crowe and he was represented by counsel.
Crowe
is correct that the unpublished opinion cited in the ALJ’s decision
is not available on Westlaw.
Regardless, if one performs a basic
Google search of the case number of the cited unpublished opinion
(Civil Action No. 04-570-JBC), the PDF of the full opinion is
available on the website of the United States Government Publishing
Office (“GPO”) and the full text is available to the public without
a paid subscription.
Similarly, the full text of the opinion may
be accessed by running a search on the Federal Digital System
(“FDsys”).
Federal
Digital
System,
U.S.
Gov’t
Pub.
Off.,
https://www.gpo.gov/fdsys/ (last visited Aug. 16, 2018) (In the
dialogue box under “Search Government Publications” type “Civil
Action No. 04-570-JBC,” then select “Search,” then the hyperlink
to access the PDF of the case without a paid subscription is
available on the first page of the search results (the case text
17
was
the
fifth
search
result
in
the
list)).
Finally,
Judge
Coffman’s opinion is available in the Court’s CM/ECF.
Here, the risk of erroneous deprivation is miniscule if
existent.
The process that Crowe seeks, access to the unpublished
opinion cited in the ALJ’s decision, has been available to him all
along.
Crowe does not claim that the Masters case provides an
incorrect recitation of the DSM-IV-TR standard regarding mental
retardation.
As such, the additional safeguards that he requests
have no probable value.
First, Crowe argues that the ALJ should have either provided
him with a copy of the text of the opinion, presumably before
citing it, or that the ALJ should have put the text of the opinion
in the record for Crowe to access.
get off the ground.
Masters opinion.
But Crowe’s argument fails to
Again, Crowe had access to the text of the
Thus, the ALJ providing the opinion text or
placing it in the record would only serve to convenience Crowe and
his counsel but would not provide any additional information or
procedural safeguards.
The text that the ALJ quoted from the Masters opinion is
itself a quote from the DSM-IV-TR, which Crowe argues is improper
because a new version of the DSM, the DSM-V, is available.
The
argument appears to be that citation to a case that quotes a past
version of the DSM constitutes error.
Crowe undercuts his own
argument, however, when he cites authority that quotes the DSM18
III and provides a direct quotation to DSM-IV-TR to support his
argument in his Motion for Summary Judgment.
[See DE 13, p. 7,
9].
Additionally, there is no procedural issue or legal error
here
because,
precisely
mental
while
the
same
the
DSM-IV-TR
language
and
regarding
retardation/intellectual
DSM-V
do
diagnostic
disability,
the
not
contain
features
of
diagnostic
criteria require consideration of virtually the same factors in
the DSM-IV-TR and DSM-V.
subsequent
ALJ
As reflected in the Masters opinion and
decision,
the
essential
feature
of
mental
retardation under the DSM-IV-TR “is significant limitations in
adaptive functioning in at least two of the following skill areas:
communication,
self-care,
home
living,
social/interpersonal
skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety (Criterion B).”
Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 41 (4th ed. 2000)(“DSM–IV-TR”).
The DSM-V has condensed
the skill areas listed above in to more general domains, explaining
“Criterion
B
is
met
when
at
least
one
domain
of
adaptive
functioning . . . is sufficiently impaired that ongoing support is
needed in order for the person to perform adequately in one or
more
life
community.”
settings
at
school,
at
work,
at
home,
or
in
the
Am. Psychiatric Ass’n, Diagnostic and Statistical
19
Manual of Mental Disorders 38 (5th ed. 2013)(“DSM–V”).
distinction
consequence
between
the
because
two
the
retardation/intellectual
editions
of
diagnostic
disability
the
DSM
features
in
both
Here, the
is
of
no
for
mental
editions
require
consideration of the ability of a person to adequately function at
school, at work, at home, or in the community.
The ALJ cited Masters v. Comm’r of Soc. Sec. but did not rely
on the opinion as the sole basis of his decision in this matter.
[See TR 23-31]. In fact, the ALJ’s decision is based upon analysis
of Listing 12.05 after a review of a voluminous record that
includes the testimony of Crowe during an in-person hearing [TR
38-71], the testimony of a vocational expert [TR 71-76], opinions
of a clinical psychologist and two state agency psychologists [TR
430-35, 82-83, 86-89, 98-99, 102-04], medical records and history,
academic records and performance data, occupational history, and
information about Crowe’s personal life.
to
Masters
is
not
the
basis
for
Thus, the ALJ’s citation
his
opinion
and
there
is
substantial evidence to support the ALJ’s conclusions, even if the
quotation from Masters is removed from the decision.
Alternatively, Crowe appears to suggest, as an additional
procedural
safeguard,
that
citation
should
not
be
made
to
unpublished judicial opinions but does not articulate how citation
to such opinions harms his case or violates his due process rights.
20
Most
judgments
and
opinions
of
the
federal
courts
are
unpublished, but lack of publication does not reflect on the
efficacy
or
unpublished
legitimacy
decisions
of
those
may
not
opinions.
be
It
binding
or
precedential value as published opinions.
opinions
resolve
persuasive
important
authority.
legal
Moreover,
true
the
carry
that
same
Still, unpublished
issues
there
is
and
is
no
are
important
prohibition
on
citation to unpublished authority in the Joint Local Rules of Civil
Practice as applicable to the United States District Court for the
Eastern
District
Procedure.
of
Kentucky
or
the
Federal
Rules
of
Civil
See generally E.D. Ky. LR; Fed. Rs. Civ. P.
Finally, requiring that an ALJ provide counsel with any
unpublished opinion or place any unpublished opinion in the record
prior to relying on it as part of the analysis in a decision would
place an unreasonable administrative burden on ALJs and their
staff.
publicly
ALJs should be under no obligation to provide copies of
available
unpublished
authority
to
claimants
or
claimants’ counsel.
Examined
under
the
three
Eldridge
factors,
the
ALJ’s
procedure for relying upon unpublished persuasive authority from
this jurisdiction does not violate the guarantees of due process.
v.
21
The Court, having found no legal error on the part of the ALJ
and that his decision is supported by substantial evidence, the
Acting Commissioner’s final decision is AFFIRMED.
Accordingly, it is hereby ORDERED as follows:
(1)
Plaintiff’s Motion for Summary Judgment [DE 12, 13] is
DENIED;
(2)
Defendant’s
Motion
for
Summary
Judgment
[DE
15]
is
GRANTED;
(3)
Judgment in favor of the Defendant will be entered
contemporaneously herewith.
This the 20th day of August, 2018.
22
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