Milligan v. Social Security Administration, Commissioner of
MEMORANDUM OPINION in support of the following Judgment Order. Signed by Magistrate Judge H. Bruce Guyton on 3/31/21. (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
PATRICK MAYFORD MILLIGAN, JR.,
ANDREW M. SAUL,
Acting Commissioner of Social Security,
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73 of the Federal
Rules of Civil Procedure, and the consent of the parties [Doc. 16].
Now before the Court is Plaintiff’s Motion for Summary Judgment and Memorandum in
Support [Docs. 17 & 18] and Defendant’s Motion for Summary Judgment and Memorandum in
Support [Docs. 19 & 20]. Patrick Mayford Milligan, Jr. (“Plaintiff”) seeks judicial review of the
decision of the Administrative Law Judge (“ALJ”), the final decision of Defendant Andrew M.
Saul (“the Commissioner”). For the reasons that follow, the Court will DENY Plaintiff’s Motion
and GRANT the Commissioner’s Motion.
On February 29, 2016, Plaintiff protectively filed an application for supplemental security
income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.,
claiming a period of disability that began on October 1, 2015. [Tr. 156]. After his application was
denied initially and upon reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 97].
The hearing was scheduled for June 5, 2018. Plaintiff was sent a Notice of Hearing dated March
16, 2018, and a Notice of Hearing-Important Reminder dated May 22, 2018. [Tr. 113-18, 14041]. Plaintiff did not appear at the hearing, and the ALJ found that Plaintiff constructively waived
his right to a hearing. [Tr. 64-68]. On October 5, 2018, the ALJ found that Plaintiff was not
disabled. [Tr. 55-60]. The Appeals Council denied Plaintiff’s request for review on September
19, 2019, see [Tr. 1–6], making the ALJ’s decision the final decision of the Commissioner.
Having exhausted his administrative remedies, Plaintiff filed a Complaint with this Court
on October 23, 2019, seeking judicial review of the Commissioner’s final decision under Section
405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive motions,
and this matter is now ripe for adjudication.
The ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since
February 29, 2016, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following medically determinable
impairment: degenerative disc disease (20 CFR 416.921 et seq.).
3. The claimant does not have an impairment or combination of
impairments that has significantly limited (or is expected to
significantly limit) the ability to perform the basic work-related
activities for 12 consecutive months; therefore, the claimant does
not have a severe impairment or combination of impairments (20
CFR 416.921 et seq.).
4. The claimant has not been under a disability, as defined in the
Social Security Act, since February 29, 2016, the date the
application was filed (20 CFR 416.920(c)).
STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled
pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision
was reached through application of the correct legal standards and in accordance with the
procedure mandated by the regulations and rulings promulgated by the Commissioner, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004).
Substantial evidence is “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.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It
is immaterial whether the record may also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the
case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
The substantial evidence standard is intended to create a “‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the
Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of
credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).
On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.
Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
“Disability” means an individual cannot “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) and 1382c(a)(3)(A). An individual will only be
if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
§§ 423(d)(2)(A) and 1382c(a)(3)(B).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy that
accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is
“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§
404.1520(a)(4) and -(e), 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his
limitations. §§ 404.1545(a)(1) and 416.945(a)(1).
The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.
The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must
prove that there is work available in the national economy that the claimant could perform. Her
v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,
Plaintiff submits three challenges to the ALJ’s decision. First, Plaintiff argues that the ALJ
erred by finding that he constructively waived the right to appear at the hearing. Second, Plaintiff
states that the ALJ failed to properly evaluate the evidence under Step Two of the sequential
evaluation. Third, Plaintiff argues that the ALJ’s decision is not supported by substantial evidence.
The Court will address these challenges in turn.
As mentioned above, the ALJ conducted a hearing on June 5, 2018. The ALJ sent a Notice
of Hearing, dated March 16, 2018, to Plaintiff. [Tr. 113]. Plaintiff and his former counsel signed
an Acceptance of Appointment form that is dated May 21, 2018. [Tr. 135]. The ALJ sent Plaintiff
a reminder regarding the June 5 hearing that is dated May 22, 2018. [Tr. 138]. Plaintiff did not
appear at the June 5 hearing, but his former attorney appeared. During the June 5 hearing, the
ALJ: I understand your client’s not here.
ATTY: He’s not.
ALJ: Have you had any contact with him?
ATTY: So it looks like the last contact—he did call in like
February and he left a voicemail and I’ve not been able to
get in touch with him. I’ve left voicemails with both
numbers that he’s given us and he’s not returned any letters,
so I’m not sure if he’s maybe gone back to work or what’s
going on, but—
The ALJ found on the record that Plaintiff constructively waived his right to a hearing.
[Id.]. The ALJ asked Plaintiff’s counsel if she would like to present oral argument, and Plaintiff’s
counsel declined. [Tr. 67]. The hearing concluded. The ALJ issued a decision dated October 5,
2018, finding, in relevant part, as follows:
A hearing was scheduled for June 5, 2018, in Knoxville, Tennessee.
The claimant failed to appear at the hearing; however, his
representative, Jessica Baker, was present. Representative Baker
stated on the record that the last contact she received from the
claimant was a voicemail he left in February. Since then, she has
attempted to contact the claimant, but to no avail.
An [ALJ] may determine that the claimant has constructively
waived the right to appear at the hearing if the representative is
unable to find the claimant, the notice of hearing was mailed to the
claimant’s last known address, and the contact procedures of 20
CFR 416.1438 have been followed (Hallex I-2-4-25). In the current
case, the claimant’s representative was given an opportunity to
present argument or make statements on the claimant’s behalf. The
representative declined. Accordingly, the undersigned finds that
the claimant has constructively waived his right to appear for a
hearing and a decision on the record is issued (Hallex I-2-4-25D).
As mentioned above, Plaintiff argues that the ALJ erred when she found that Plaintiff
constructively waived the right to appear at the hearing. It is well established that the “Social
Security Act and basic principles of due process ‘require that a claimant receive meaningful notice
and an opportunity to be heard before his claim for disability benefits can be denied.’” Hollon ex
rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 488 (6th Cir. 2006) (quoting Stoner v. Secretary
of HHS, 837 F.2d 759, 760–61 (6th Cir. 1988)) (other citations omitted). The regulation states that
“[a]ny party to a hearing has a right to appear before the administrative law judge . . . to present
evidence and to state his or her position.” 20 C.F.R. § 416.1450(a).
Further, the Hearings, Appeals, and Litigation Law (“HALLEX”) manual “defines
procedures for carrying out policy and provides guidance for processing and adjudicating claims
at the Hearing, Appeals, Counsel and Civil Action Levels.” Engelhart v. Comm'r of Soc. Sec., No.
2:15-CV-2937, 2017 WL 780606, at *5 (S.D. Ohio Mar. 1, 2017) (other citations omitted).
Specifically, the parties cite the following provision:
If an appointed representative appears at the scheduled hearing
without the claimant and continues to represent the claimant during
the hearing, dismissal is never appropriate. However, the ALJ may
determine that the claimant has constructively waived the right to
appear at the hearing if:
The representative is unable to locate the claimant;
The Notice of Hearing was mailed to the claimant’s last known
The contact procedures required by 20 CFR 404.938 and 416.1438,
as described in HALLEX I-2-3-20, have been followed.
https://www.ssa.gov/OP_Home/hallex/I-02/I-2-4-25.html (last visited Mar. 29, 2021).
provision further states as follows:
If the ALJ finds that the claimant has constructively waived the right
to appear at the hearing, the ALJ need not proceed with the hearing
and may choose to issue a decision on the record. However, if
medical expert or vocational expert testimony is needed to resolve
the case, the ALJ may choose to proceed with the hearing, accepting
the testimony of the witness(es) and allowing the appointed
representative to question the witness(es) and make arguments on
the claimant's behalf.
In any event, the ALJ will advise the appointed representative, either
on the record during the hearing or in writing thereafter, that he or
she will not send a Request to Show Cause for Failure to Appear to
the claimant because the claimant has constructively waived the
right to appear at a hearing. When done in writing, the ALJ must
associate the writing with the record.
https://www.ssa.gov/OP_Home/hallex/I-02/I-2-4-25.html (last visited Mar. 29, 2021). If the ALJ
issues a show cause order, after the 10-day response period expires, the ALJ may either determine
that the claimant constructively waived his or her right to a hearing (if the claimant fails to respond
or fails to establish good cause) and issue a decision on the record, or offer a supplemental hearing
if the claimant establishes good cause.
“The United States Court of Appeals for the Sixth Circuit has held that
the HALLEX manual does not carry the force of law.” Stires v. Comm'r of Soc. Sec., No. 2:17CV-811, 2018 WL 3237673, at *3 (S.D. Ohio July 3, 2018) (quoting Bowie v. Comm'r of Soc.
Sec., 539 F.3d 395, 399 (6th Cir. 2008)), report and recommendation adopted, No. 2:17-CV-811,
2018 WL 4203451 (S.D. Ohio Sept. 4, 2018); see also Engelhart, 2017 WL 780606, at *5
(explaining that HALLEX does not bind the court but that a minority of courts “have granted relief
the HALLEX procedures”).
While not binding, “[t]he Sixth Circuit has found that HALLEX provides due process.”
Neuzil v. Astrue, No. 2:12-CV-00034, 2013 WL 2445212, at *7 (M.D. Tenn. June 5, 2013), report
and recommendation adopted sub nom. Neuzil v. Colvin, No. 2:12-CV-00034, 2013 WL 3967706
(M.D. Tenn. July 30, 2013). Stated in a different way, “if the ALJ follows the HALLEX
procedures, then plaintiff is accorded her procedural due process rights. If the ALJ does not follow
the HALLEX procedures, then plaintiff may establish a colorable claim that her procedural due
process rights were violated.” Id.
In the instant matter, Defendant acknowledges that “the ALJ does not appear to have
advised the appointed representative, either on the record during the hearing or in writing
thereafter, that she will not send a Request to Show Cause for Failure to Appear.” [Doc. 20 at 6].
Defendant continues, however, that it is not clear how the failure to follow this step adversely
impacted Plaintiff. The Court agrees. The HALLEX provisions do not require the ALJ to issue
a show cause order, but instead, the provisions merely require the ALJ to state whether he or she
will issue a show cause order. The ALJ stated at the hearing that she was going to find that Plaintiff
constructively waived his right to a hearing, meaning she would not issue a show cause order.
Plaintiff’s present argument that the ALJ did not advise his former counsel at the hearing whether
a show cause order would be issued elevates form over substance. Finally, the ALJ provided an
opportunity to Plaintiff’s representative to present arguments or make statements on Plaintiff’s
behalf, and the offer was declined.
Plaintiff states that “the fact that [he] was in direct contact with his representative [f]ifteen
(15) days before his hearing and yet did not appear at the hearing is puzzling but without issuance
of a show cause there is no explanation.” [Doc. 18 at 3].1 As explained above, a show cause order
is not required, and Plaintiff’s representative attended the hearing. Plaintiff further argues that is
unclear how the ALJ made certain findings given that there was no testimony at the hearing. For
instance, Plaintiff argues that the ALJ found that Plaintiff worked after the application date but
that his work activity did not rise to the level of substantial gainful activity. The ALJ’s decision
Plaintiff refers to his absence as “puzzling,” but presumably he knows why he did not
attend the hearing. Noticeably absent from Plaintiff’s brief is any explanation as to why he failed
to attend his hearing. He does not dispute that he received the Notice of the hearing or the Notice
reminding him of the hearing. Finally, he does not argue he would have been able to establish good
cause for his failure to attend had the ALJ issued a show cause order.
is clear on how she made such a finding. Specifically, the ALJ states that treatment records from
March 2018 indicate that Plaintiff is working full time as a tree trimmer, but the available earning
records do not reflect such income, and therefore, “[t]he evidence is insufficient to establish
whether this work activity constitutes substantial gainful activity.” [Tr. 57]. Plaintiff also states
that the record contains a notice to a vocational expert regarding the hearing, but there is no
mention of the vocational expert attending the hearing. Plaintiff does not explain how this
omission constitutes reversible error.
Next, Plaintiff argues that the ALJ failed to properly evaluate the evidence under Step Two.
Plaintiff submits that the medical evidence shows sufficient objective findings to meet this step.
Specifically, Plaintiff states that his MRI shows annular tear and protrusion at L4-5 and a bulge at
L5-S1. In addition, Plaintiff states that his providers’ notes show that he suffers from polycystic
To be found disabled, “the ALJ must find that the claimant has a severe impairment or
impairments” at step two. Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88 (6th Cir.
1985). Plaintiff bears the burden at step two of proving the existence of a severe, medically
determinable impairment. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
An impairment, or combination of impairments, will be found severe if the impairment(s)
“significantly limit [a claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. § 416.920(c). The step two determination is “a de minimis hurdle,” in that “an impairment
will be considered not severe only if it is a slight abnormality that minimally affects work ability
regardless of age, education, and experience.” Higgs v. Brown, 880 F.2d 860, 862 (6th Cir. 1988)
(citing Farris, 773 F.2d at 90). Importantly, the diagnosis of an impairment “says nothing about
the severity of the condition.” Id. at 863. Rather, the claimant must “produce or point to some
evidence that indicates that an alleged impairment impacts his ability to perform basic work
activities.” Johnson v. Astrue, No. 3:09-CV-317, 2010 WL 2803579, at *5 (E.D. Tenn. June 30,
2010), report and recommendation adopted by, 2010 WL 2836137 (E.D. Tenn. July 15, 2010).
Here, the ALJ found that Plaintiff had degenerative disc disease but that his impairment
does not significantly limit the ability to perform basic work-related activities. The ALJ noted that
in Plaintiff’s disability report, he reported kidney disease, arthritis, depression, and back, neck, and
shoulder pain, but that in his appeals report, he did not allege that any of the conditions had
worsened. The ALJ noted that in terms of his degenerative disc disease, a lumbar MRI from June
2013 revealed an annular tear with mild degenerative changes and minimal indention at L4-5 with
similar findings at L5-S1 aside from mild to moderate bilateral stenosis. The ALJ stated that
Plaintiff had tenderness and pain with range of motion, but his provider noted 5/5 strength in his
bilateral upper and lower extremities, intact sensation, and negative straight leg raises. The ALJ
also noted that Plaintiff reported doing well on his medication and that he needed to be tapered
down and offered an alternative to opioid treatment. Finally, the ALJ reasoned that the record
indicated that Plaintiff was able to work a full-time job as a tree trimmer.
The Court finds that the ALJ did not err at Step Two. With respect to Plaintiff’s back
issues, the medical records show that Plaintiff reported that his medication allows him to complete
his activities of daily living with less pain and that he was able to work a full-time job as a tree
trimmer. The ALJ discussed the June 2013 MRI results (which showed mild degenerative changes
and mild to moderate bilateral stenosis) and weighed the objective evidence in the record
Plaintiff further argues that the ALJ failed to address his polycystic kidney disease, which
was confirmed by an MRI. The results of the MRI, dated June 5, 2013, found “innumerable
bilateral renal cysts.” [Tr. 322]. The impression was “[c]linically correlate for polycystic kidney
disease.” [Id.]. On the MRI results, Plaintiff’s provider handwrote the following note dated June
19, 2013, “Probable PKD (polycystic kidney disease Needs Nephro ASAP)”. [Id.]. Plaintiff has
not provided any citations to the record showing that he actually received a diagnosis of polycystic
kidney disease or that such disease affects his ability to perform basic work-related activities.
Accordingly, the Court finds Plaintiff’s argument not well taken.
Finally, Plaintiff argues that the ALJ’s decision is not supported by substantial weight.
Plaintiff argues that the ALJ gave great weight to the State Agency’s consultant’s decision and
that the ALJ did not assign any particular weight to the Chilhowie Pain Center records, despite
being the most voluminous records.
In the ALJ’s opinion, however, she clearly relied on the
Chilhowie Pain Center records, which largely show that Plaintiff reported moderate pain and
treated with conservative measures, such as medication, electric stimulation, and heating pads. As
mentioned above, the records also show that Plaintiff is able to work full time as a tree trimmer.
Plaintiff further argues that the ALJ found his statements concerning the intensity,
persistence, and limiting effects of his symptoms inconsistent with the objective evidence, but the
ALJ failed to explain the inconsistences and failed to explain such statements given that Plaintiff
did not testify at the hearing. The medical records, however, are replete with Plaintiff’s description
of his pain (e.g., describing his pain as an 8 out of 10 during several appointments). The ALJ
simply reviewed the objective evidence and found that the objective evidence supported denying
disability benefits. Accordingly, the Court finds that the ALJ’s opinion is supported by substantial
Accordingly, for the reasons explained above, the Court DENIES Plaintiff’s Motion for
Summary Judgment [Doc. 17] and GRANTS Defendant’s Motion for Summary Judgment [Doc.
19]. There being no further issues before the Court, the undersigned will enter a separate order
closing this matter.
United States Magistrate Judge
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