Tindall v. Berryhill

Filing 25

ORDER Affirming the Commissioner's Decision. Signed by Magistrate Judge Tu M. Pham on 3/19/2019. (Pham, Tu)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________

HOLLY TINDALL,

)
)
Plaintiff,
)
)
v.
)
No. 17-2204-TMP
)
NANCY A. BERRYHILL, ACTING
)
COMMISSIONER OF SOCIAL
SECURITY,
)
)
Defendant.
)
______________________________________________________________
ORDER AFFIRMING THE COMMISSIONER’S DECISION
______________________________________________________________
Before the court is plaintiff Holly Tindall’s appeal from a
final

decision

of

the

Commissioner

of

Social

Security

(“Commissioner”) denying her application for disability insurance
benefits and Supplemental Security Income (“SSI”) under Titles II
and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-434,
1381-1385.

(ECF No. 1.)

The parties have consented to the

jurisdiction of the United States magistrate judge pursuant to 28
U.S.C. § 636(c).

(ECF No. 8.)

For the following reasons, the

Commissioner’s decision is affirmed.
I.

FINDINGS OF FACT

Tindall applied for disability insurance benefits on November
12, 2012, and SSI on May 13, 2013, with an alleged onset date of
June 13, 2012.
initially

and

(R. 172-73; 166-71.)
on

reconsideration.

The claims were denied
(R.

68-69;

99-100.)

At

Tindall’s request, an Administrative Law Judge (“ALJ”) held a

hearing and issued a written decision.

(R. 14-30.)

It appears

that at the hearing before the ALJ, Tindall initially was sworn in
to

testify

and

answered

several

questions.

However,

she

experienced a spasm, at which point the ALJ stopped the hearing so
that she could receive medical attention.
resumed later that day.

(R. 37-38.)

The hearing

The ALJ noted that Tindall had already

given a “significant amount of information,” so Tindall’s mother
was sworn in and testified.

(R. 38.)

At the close of this

testimony, Tindall’s attorney requested two weeks of additional
time to file a supplemental brief describing Tindall’s medication
and side effects, noting Tindall was “unable to testify to the
fullest.”

(R.

46-47.)

Tindall

subsequently

provided

a

supplemental brief to the ALJ, including, inter alia, a description
of the medications she was taking and an affidavit describing “what
she would have testified to had she not had the spasm.”

(R. 233.)

In her written decision, the ALJ first found that Tindall had
not engaged in substantial gainful activity since the alleged onset
date.

(R. 19.)

Second, the ALJ determined that Tindall had the

following severe impairments: history of treatment for muscle spasm
and possible autonomic system dysfunction.

(R. 19.)

Third, the

ALJ determined Tindall did not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1.

(R. 20.)

Fourth, the ALJ determined that Tindall retained the
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residual functional capacity (“RFC”) to perform medium work as
defined in 20 CFR §§ 404.1567(c) and 416.967(c).

(R. 20.)

The ALJ

found that Tindall could perform past relevant work as a store
clerk because this work does not require the performance of workrelated activities precluded by her RFC.

(R. 25.)

determined that Tindall was not disabled.

Thus, the ALJ

(R. 25.)

The Social

Security Administration’s (“SSA”) Appeals Council denied Tindall’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.

(R. 1.)

Tindall filed the instant action on March 21, 2017, seeking
reversal and remand of the Commissioner’s decision.

(ECF No. 1.)

Tindall argues that the ALJ erred by failing to allow her to
testify further regarding her past relevant work, medical problems
and how they impacted her work, treating sources, care, and her
pain, duration, intensity, medications, and side effects.
22 at 8.)

(ECF No.

As previously stated, Tindall had to be removed from the

hearing due to a spasm, but her attorney submitted a supplemental
brief and affidavit which described what she would have testified
to at the hearing.
II.
A.

CONCLUSIONS OF LAW

Standard of Review
Under 42 U.S.C. § 405(g), a claimant may obtain judicial

review of any final decision made by the Commissioner after a
hearing to which he or she was a party.
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“The court shall have

power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
the

Commissioner’s

42 U.S.C. § 405(g).

decision

is

limited

Judicial review of

to

whether

there

is

substantial evidence to support the decision and whether the
Commissioner used the proper legal criteria in making the decision.
Id.; Winn v. Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir.
2015); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v.
Comm’r

of

Soc.

Sec.,

486

F.3d

234,

241

(6th

Cir.

2007).

Substantial evidence is more than a scintilla of evidence but less
than

a

preponderance,

and

is

“such

relevant

evidence

as

a

reasonable mind might accept as adequate to support a conclusion.”
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In

determining

whether

substantial

evidence

exists,

the

reviewing court must examine the evidence in the record as a whole
and “must ‘take into account whatever in the record fairly detracts
from its weight.’”

Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.

1990) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.
1984)).

If

Commissioner’s

substantial
decision,

evidence
however,

is
the

found
court

to

support

the

must

affirm

that

decision and “may not even inquire whether the record could support
a decision the other way.”

Barker v. Shalala, 40 F.3d 789, 794
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(6th Cir. 1994) (quoting Smith v. Sec’y of Health & Human Servs.,
893 F.2d 106, 108 (6th Cir. 1989)).

Similarly, the court may not

try the case de novo, resolve conflicts in the evidence, or decide
questions of credibility.

Ulman v. Comm’r of Soc. Sec., 693 F.3d

709, 713 (6th Cir. 2012) (citing Bass v. McMahon, 499 F.3d 506, 509
(6th Cir. 2007)).

Rather, the Commissioner, not the court, is

charged with the duty to weigh the evidence, to make credibility
determinations, and to resolve material conflicts in the testimony.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997);
Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990); Kiner v.
Colvin, No. 12-2254-JDT, 2015 WL 1295675, at *1 (W.D. Tenn. Mar.
23, 2015).
B.

The Five-Step Analysis
The Act defines disability as the “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.”
423(d)(1).

42 U.S.C. §

Additionally, section 423(d)(2) of the Act states that:

An individual shall be determined to be under a
disability only 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. For purposes
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of the preceding sentence (with respect to any
individual), “work which exists in the national economy”
means work which exists in significant numbers either in
the region where such individual lives or in several
regions of the country.
Under

the

Act,

the

claimant

bears

establishing an entitlement to benefits.

the

ultimate

burden

of

Oliver v. Comm’r of Soc.

Sec., 415 F. App’x 681, 682 (6th Cir. 2011).

The initial burden is

on the claimant to prove she has a disability as defined by the
Act.

Siebert v. Comm’r of Soc. Sec., 105 F. App’x 744, 746 (6th

Cir. 2004) (citing Walters, 127 F.3d at 529); see also Born v.
Sec’y of Health & Human Servs., 923 F.2d 1168, 1173 (6th Cir.
1990).
the

If the claimant is able to do so, the burden then shifts to

Commissioner

to

demonstrate
with

the

the

existence

claimant’s

of

available

employment

compatible

disability

and

background.

Born, 923 F.2d at 1173; see also Griffith v. Comm’r of

Soc. Sec., 582 F. App’x 555, 559 (6th Cir. 2014).
Entitlement to social security benefits is determined by a
five-step sequential analysis set forth in the Social Security
Regulations.

See 20 C.F.R. §§ 404.1520 & 416.920.

First, the

claimant must not be engaged in substantial gainful activity.
20 C.F.R. §§ 404.1520(b) & 416.920(b).

See

Second, a finding must be

made that the claimant suffers from a severe impairment.
§§ 404.1520(a)(4)(ii) & 416.920(a)(5)(ii).

20 C.F.R.

In the third step, the

ALJ determines whether the impairment meets or equals the severity
criteria set forth in the Listing of Impairments contained in the
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Social

Security

Regulations.

404.1525, 404.1526.

See

20

C.F.R.

§§

404.1520(d),

If the impairment satisfies the criteria for a

listed impairment, the claimant is considered to be disabled.

On

the other hand, if the claimant’s impairment does not meet or equal
a listed impairment, the ALJ must undertake the fourth step in the
analysis and determine whether the claimant has the RFC to return
to any past relevant work.
404.1520(e).

See 20 C.F.R. §§ 404.1520(a)(4)(iv) &

If the ALJ determines that the claimant can return to

past relevant work, then a finding of not disabled must be entered.
Id.

But if the ALJ finds the claimant unable to perform past

relevant work, then at the fifth step the ALJ must determine
whether the claimant can perform other work existing in significant
numbers

in

the

national

404.1520(a)(4)(v),

economy.

404.1520(g)(1),

See

20

C.F.R.

416.960(c)(1)-(2).

§§

Further

review is not necessary if it is determined that an individual is
not disabled at any point in this sequential analysis.

20 C.F.R. §

404.1520(a)(4).
C.

Whether Tindall was Afforded a Full and Fair Hearing
While

the

claimant

bears

the

burden

of

establishing

disability, see 20 C.F.R. § 404.1512(a), the ALJ is responsible for
developing a complete medical history and considering the evidence
in making a disability determination.

20 C.F.R. §§ 404.1512(b),

416.913(b); Strang v. Comm’r of Soc. Sec., 611 F. App’x 271, 275-76
(6th Cir. 2015).

This includes obtaining statements from the
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claimant herself.

See 20 C.F.R. §§ 404.1513(a)(4); 416.913(b).

Such evidence may be obtained “either directly from the [claimant]
or indirectly, such as from forms we receive and our administrative
records.”

Id.

An ALJ abuses her discretion when she fails to

conduct a full and fair hearing, which may occur when the claimant
is not allowed to testify.
(Jan. 29, 2013).

See SSR 13-1p, 2013 WL 633939, at *3

But the ALJ determines the subject and scope of

the claimant’s testimony, and how and when the claimant will
testify at the hearing.

HALLEX I-2-6-60(A).

Tindall’s entire argument is that the “transcript of the very
limited hearing” establishes an abuse of discretion and warrants
remand.

The record belies this claim.

Tindall appeared at the

hearing; she was not forbidden or denied from testifying at all.
See SSR 13-1p, 2013 WL 633939, at *3.

Tindall was able to answer

numerous questions, including identifying her age, education, work
history, and medical records.

(R. 32-38.)

While it is true that

Tindall was not able to submit her full testimony in person due to
experiencing

a

spasm,

the

ALJ

granted

leave

to

submit

such

testimony in writing, specifically noting that Tindall could submit
“whatever medical evidence or documentation or whatever else you
need to add.”

(R. 48.)

Such information was later provided and

considered by the ALJ in making the disability determination.
decision was within the ALJ’s discretion.
404.1513(a)(4), 416.913(b); HALLEX I-2-6-60(A).
-8-

This

See 20 C.F.R. §§
Tindall does not

otherwise describe how she was deprived of a full and fair hearing
or identify any legal error such that remand would be appropriate.
Nor does Tindall identify how providing additional testimony in
person, as opposed to through an affidavit, would have benefitted
her, or how she was prejudiced by such decision.
inappropriate

to

reverse

and

remand

where,

as

It would be
here,

the

ALJ

complied with the regulations, did not abuse her discretion, and
the specifically granted Tindall the additional relief she sought.
While Tindall’s complaint makes a passing reference to a
denial of due process, her brief does not raise this argument.

To

the extent she intends to assert a due process challenge, however,
such argument likewise fails.
benefits
benefits.”

has

a

Fifth

“An applicant for Social Security

Amendment

property

interest

in

those

Watters v. Comm’r of Soc. Sec. Admin., 530 F. App’x

419, 424 (6th Cir. 2013) (citing Flatford v. Chater, 93 F.3d 1296,
1304–05 (6th Cir. 1996); see also Richardson v. Perales, 402 U.S.
389, 401–02 (1971)).

Due process requires that a claimant's

hearing be “fundamentally fair.”

Perales, 402 U.S. at 401–02.

A

due process claim is evaluated using three factors: “(1) ‘the
private interest that will be affected by the official action’; (2)
‘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

(3)

‘the

Government's

interest, including the function involved and the fiscal and
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administrative burdens that the additional or substitute procedural
requirement would entail.’”

Watters, 530 F. App’x at 425 (quoting

Flatford, 93 F.3d at 1306).
The ALJ here granted Tindall additional time to supplement the
record, to allow her to submit additional testimony in the form of
an affidavit.

Tindall does not articulate how additional process

would have aided her in presenting her case.

See id.

Tindall

specifically requested and was granted relief in the form of
submitting additional records and an affidavit.

And Tindall does

not identify, with any level of specificity, how she was prejudiced
by the ALJ’s decision to accept a written affidavit in lieu of inperson testimony, i.e., she does not identify an evidentiary gap
resulting in unfairness or clear prejudice.

See Spurlock v.

Colvin, No. 4:15-CV-330-LSC, 2016 WL 1580350, at *4 (N.D. Ala. Apr.
20, 2016) (citing Kelley v. Heckler, 761 F. 2d 1538, 1540 (11th
Cir. 1985); Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir.
1982)).

Accordingly, the court declines to find that Tindall’s due

process rights were violated.
The court has previously found that the ALJ did not abuse her
discretion

and

thus

did

not

violate

any

agency

regulations.

However, even if she did, any such error would be harmless based on
the above analysis.

See Strang, 611 F. App’x at 275; Derocher v.

Comm’r of Soc. Sec., No. 17-11858, 2018 WL 4496529, at *13 (E.D.
Mich. Aug. 31, 2018).

Tindall does not otherwise identify any
-10-

error such that remand would be appropriate.

Having reviewed the

ALJ’s decision, no legal error is apparent, and the decision
appears to be otherwise supported by substantial evidence.
III. CONCLUSION
For these reasons, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
March 19, 2019
Date

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