Gentry v. Berryhill

Filing 20

MEMORANDUM AND ORDER - IT IS ORDERED: The decision of the Commissioner of the Social Security Administration is affirmed. Judgment in accordance with this memorandum and order will be entered by separate document. Ordered by Magistrate Judge Cheryl R. Zwart. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SANDRA JOY GENTRY,
Plaintiff,

4:18CV3044

vs.
MEMORANDUM AND ORDER
NANCY A. BERRYHILL,
Defendant.

This is an action for judicial review of a final decision of the Commissioner
of the Social Security Administration (Commissioner) that the plaintiff, Sandra Joy
Gentry is not disabled. Gentry seeks reversal of the decision of Nancy A. Berryhill,
Acting Commissioner of the Social Security Administration (Commissioner), as she
asserts the decision is not supported by substantial evidence. Filing No. 15. The
Commissioner seeks affirmance of the decision, asserting that Gentry had a fair
hearing and full administrative consideration in accordance with applicable
statutes and regulations, and the substantial evidence on the record as a whole
supports the Commissioner’s decision. Filing No. 17.
I.

Procedural Background

Gentry filed for Period of Disability and Disability Insurance benefits on April
30, 2015, alleging disability beginning September 1, 2014. Filing No. 9-2 at
CM/ECF p. 50. The application was denied on August 17, 2015. Id. Plaintiff
requested reconsideration and that request was denied on October 7, 2015. Id.
Plaintiff requested a hearing on November 11, 2015. A hearing was held before an
Administrative Law Judge (ALJ) on July 21, 2017. Id.

On October 3, 2017, the ALJ issued a written decision DENYING Gentry’s
claim. Plaintiff timely filed a request for review of the ALJ’s decision. The Appeals
Council denied the request on January 29, 2018. Filing No. 9-2 at CM/ECF p. 2-5.
Plaintiff timely filed her appeal in this court pursuant to 42 U.S.C. 405(g), on March
23, 2018. Filing No. 1.
II.

The ALJ’s Decision

The ALJ evaluated Gentry’s claim through the five-step evaluation process
to determine whether Gentry was disabled under sections 216(i) and 223(d) of the
Social Security Act. As reflected in his decision, the ALJ made the following
findings:
1)

The claimant meets the insured status requirements of the Social

Security Act through December 31, 2019.
2)

The claimant has not engaged in substantial gainful employment

since September 1, 2014, the alleged onset date. (20 CFR 404.1571 et.
seq.).
3)

The claimant has the following severe impairments: depression,

anxiety with panic attacks, diabetes mellitus with neuropathy, hypertension,
obesity, degenerative disc disease of the lumbar spine, osteoarthritis of the
right hip, and bilateral shoulder tendinitis (20 CFR 404.1520(c).
4)

The claimant does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
5)

The claimant has the residual functional capacity ("RFC") to perform

sedentary work as defined in 20 CFR 404.1567(a) except the claimant can
engage in no more than occasional overhead reaching bilaterally; she can
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engage in no more than frequent handling bilaterally; and she can engage
in no more than occasional pushing, pulling, or the operation of foot controls
with the lower extremities bilaterally. Mentally, the claimant would be limited
to unskilled, routine, and repetitive instructions and tasks; she could tolerate
no more than occasional changes in a work place environment or routine;
and she could have no more than occasional interaction with co-workers,
supervisors, or the general public.
6)

The claimant is unable to perform any past relevant work (20 CFR

404.1565).
7)

The claimant was born on April 29, 1969 and was 45 years old, which

is defined as a younger individual age 18-44, on the alleged disability onset
date (20 CFR 404.1563).1
8)

The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564).
9)

Transferability of job skills is not material to the determination of

disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is "not disabled," whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10)

Considering the claimant's age, education, work experience, and

residual functional capacity, there are jobs that exist in significant numbers
in the national economy that the claimant can perform (20 CFR 404.1569
and 404.1569(a)).

1

The court notes the discrepancy between Gentry’s age and the age
category for “younger individuals” as referenced by the ALJ’s decision. Since
Gentry’s briefs do not raise this discrepancy as a basis for reversal, and the court
will not address it in this Memorandum and Order.
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III.

Issues Raised for Judicial Review

Gentry requests judicial review of the ALJ’s decision, asserting that the
following arguments support her claim for reversal.
1)

The ALJ erred by failing to analyze the opinion evidence in

accordance with the regulations, Agency policy, and Eighth Circuit
precedent.
2)

The ALJ erred in relying on vocational expert testimony to fulfill his

step 5 burden without properly addressing her objections memorandum and
rebuttal evidence related to the vocational expert’s testimony.
Filing No. 16.
IV.

The Record and Proceedings Before the ALJ

Gentry was 45-years-old when she submitted her application for benefits.
She claimed mental and physical conditions which limited her ability to work,
including: 1) Depression; 2) Anxiety; 3) PTSD; 4) Type 2 Diabetes; 5) Diabetic
Neuropathy; 6) High Blood Pressure; and, 7) Back Problems in the Lumbar
Region. Filing No. 9-7 at CM/ECF p. 6. In addition, Gentry testified that she has a
diagnosed medical history of diabetic retinopathy, obesity, disc disease of the
lumbar spine, arthritis in multiple joints, and she suffers from panic attacks. Filing
No. 9-2 at CM/ECF p. 72-73. She has left and right shoulder tendinitis and had
surgery on her left shoulder. Id.
Gentry has a high school education and completed two years of college.
She has an associate degree in science and is a licensed practical nurse. At the
time of her hearing she was 48-years-old. Filing No. 9-2 at CM/ECF p. 76. Gentry

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has a driver’s license, but rarely drives because she has difficulty seeing and was
recently in a car accident. Filing No. 9-2 at CM/ECF p. 76.
She began working at a nursing home in 2003. Gentry stated she had been
absent from work on a weekly basis while she was taking her husband to medical
appointments for cancer treatment. Filing No. 9-2 at CM/ECF p. 78. Her husband
died on December 28, 2013, and Gentry stated that she became unstable,
depressed, and suffered from panic attacks and anxiety. Filing No. 9-2 at CM/ECF
p. 78. She continued to work, but frequently took leave throughout the period from
December 28, 2013 to September 1, 2014, at which time she terminated her
employment. Filing No. 9-2 at CM/ECF p. 77-79.
Her father died on January 19, 2015, and her mother died on February 19,
2015. Id. Gentry stated that her mental health condition has worsened since she
stopped working. Filing No. 9-2 at CM/ECF p. 80. She said she experienced
increased depression, isolation, and lethargy, and she “felt wobbly all the time.”
She stated that the primary reason she feels that she cannot return to work is due
to her mental health. Filing No. 9-2 at CM/ECF p. 78.
Gentry sought treatment by Dr. Steven Senseney and Angela Mediema, a
physician assistant. Senseney treated her for depression and bereavement with
Ketamine injections starting in August 2014. Filing No. 9-11 at CM/ECF p 488.
Gentry moved into her parent’s home after they died, and she currently resides
there with her sister. Id. She has three sisters who help her, and she is in
communication with her aunt. Filing No. 9-2 at CM/ECF p. 81. Gentry has
infrequent contact with individuals outside of her immediate family. She maintains
contact with her therapist through video conferencing. Filing No. 9-2 at CM/ECF p.
82. In July 2017, her sessions with the therapist decreased from twice per week to
once per week. She also sees a doctor “at least two to three times a week.” Id.

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Gentry testified that she was able to bathe herself, but sometimes she
doesn’t bathe for a few days because she doesn’t feel like getting up, (Filing No.
9-2 at CM/ECF p. 85); her shoulder pain makes it difficult to bathe, and she has
difficulty reaching above her head, (Filing No. 9-2 at CM/ECF p. 86); and she has
difficulty opening jars or beverage containers because of weakness in her hands,
(Filing No. 9-2 at CM/ECF p. 87). She testified that she has back pain, which makes
it difficult to stand for longer than five minutes at a time; she can sit for
approximately ten minutes at a time, and uses ice, heat, and pain medication to
manage the pain in her back and legs, (Filing No. 9-2 at CM/ECF p. 86), and her
doctor advised her not to bend over or lift due to spondylosis. Filing No. 9-2 at
CM/ECF p. 88.
Senseney submitted a Treating Source Statement indicating he had treated
Gentry for “30+ years” for depression, diabetes, anxiety, panic disorder, chronic
low back pain, sleep apnea, diabetic retinopathy, diabetic neuropathy, and diabetic
foot ulcers. Filing No. 11-8 at CM/ECF p. 46. The details of his statement will be
discussed, in greater detail, below.
The ALJ received Disability Determination Explanation forms dated August
17, 2015 and October 6, 2015. The August form is for the DIB claim at the initial
level and the October form is for the DIB claim at the reconsideration level. Both
documents state Gentry had moderate restriction of activities of daily living,
moderate difficulties maintaining social functioning, and moderate difficulties
maintaining concentration persistence or pace. Filing No. 9-4 at CM/ECF pp. 7, 22.
Both contain findings that Gentry’s statements about the intensity, persistence, and
functionally limiting effects of the symptoms were not substantiated by objective
medical evidence alone, and her statements were “partially credible.” Filing No. 94 at CM/ECF pp. 8, 23. The RFC in both documents assigned exertional limitations
which included occasionally pulling up to 50 pounds, frequently lifting and/or

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carrying 25 pounds, standing and/or walking for about 6 hours in an 8-hour
workday and sitting for a total of about 6 hours in an 8-hour workday. Filing No. 94 at CM/ECF p. 9, 23-24. Gentry was rated as “moderately limited” in a few areas
of her mental residual functional capacity, which includes the ability to understand
and remember detailed instructions, ability to carry out detailed instructions, ability
to maintain attention and concentration for extended periods, and ability to
complete a normal workday without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods. Filing No. 9-4 at CM/ECF pp. 10, 26.
A vocational expert (VE) testified that a hypothetical individual with the same
work profile and limitations as Gentry would not be able to perform the past work
described due to the skills and exertion required of her job as a nurse. Filing No.
9-2 at CM/ECF p. 102. The VE testified that there would be hypothetical unskilled
work available in significant numbers in the national economy which would be able
to accommodate light exertion limitations. He offered three suggestions, including
mail clerk, inspector and hand packager, and assembler of electrical accessories.
Each of these jobs are unskilled with light level exertion. Filing No. 9-2 at CM/ECF
p. 102-103.
If the hypothetical individual was changed to sedentary exertion, there would
be jobs available in significant numbers in the national economy as well. Anderson
offered three additional suggestions, including a touch-up screener who inspects
electronic assemblies, a patcher who puts together electrical components, and a
table worker who inspects linoleum materials. Filing No. 9-2 at CM/ECF p. 103.
If the hypothetical individual was limited to no more than five minutes of
uninterrupted standing and no more than ten minutes of uninterrupted sitting
without a change in position, the jobs the VE described would no longer be
available. Filing No. 9-2 at CM/ECF p. 104. Similarly, if the hypothetical individual
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would have to miss up to four days per month on an unscheduled basis and/or
miss 25 percent of the workday off task to manage their conditions, these
conditions would independently eliminate all jobs. Filing No. 9-2 at CM/ECF p. 104.
V.

Analysis

A denial of benefits by the commissioner is reviewed to determine whether
it is supported by substantial evidence on the record as a whole. Hogan v. Apfel,
239 F.3d 958, 960 (8th Cir. 2001) .
If substantial evidence on the record as a whole supports the
Commissioner=s decision, it must be affirmed. Choate v. Barnhart, 457
F.3d 865, 869 (8th Cir. 2006). A>Substantial evidence is relevant
evidence that a reasonable mind would accept as adequate to support
the Commissioner=s conclusion.=@ Smith v. Barnhart, 435 F.3d 926,
930 (8th Cir. 2006) (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th
Cir. 2000)). AThe ALJ is in the best position to gauge the credibility of
testimony and is granted deference in that regard.@ Estes v. Barnhart,
275 F.3d 722, 724 (8th Cir. 2002).
Schultz v. Astrue, 479 F.3d 979, 982 (8th Cir. 2007). Evidence that both supports
and detracts from the Commissioner=s decision must be considered, but the
decision may not be reversed merely because substantial evidence supports a
contrary outcome. Wildman v. Astrue, 596 F. 3d 959 (8th Cir. 2010). The court
should not overturn an ALJ’s decision so long as it is in the “zone of choice” even
if the court disagrees with the ALJ’s conclusion. Buckner v. Astrue, 646 F.3d 549,
556 (8th Cir. 2011). The court “defer[s] heavily to the findings and conclusions” of
the Social Security Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.
2010).
To establish that she is entitled to benefits, Gentry must show she cannot
perform substantial gainful activity because of a medically determinable
impairment that lasted or can be expected to last for a continuous period of not
less than twelve months. See 42 U.S.C. § 423(d). Gentry claims the court must
8

reverse the Commissioner’s decision because the ALJ failed to analyze the opinion
evidence in accordance with the regulations, policies, and precedent, and because
the ALJ relied on vocational expert testimony to fulfill his step five burden without
addressing her objections and rebuttal evidence. For the reasons discussed below,
these arguments will be denied.

9

1. Failure to analyze the opinion evidence in accordance with the regulations,
policies and precedent
A. Evidence of Treating Physicians
At the administrative hearing, the treating source statement of Senseney
was received as an exhibit. Senseney opined that Gentry’s symptoms would likely
be severe enough to interfere with the attention and concentration needed to
perform even simple work-related tasks, and she would be “off task” for over 25%
of a typical workday. Filing No. 11-8 at CM/ECF p. 46. He opined that Gentry would
likely be absent from work due to her impairments and treatment approximately 4
times per month. Filing No. 11-8 at CM/ECF p. 46. Senseney indicated that Gentry
could never lift and could rarely carry less than 10 pounds. He opined that in an 8hour workday Gentry could sit for 2 hours, stand for 1 hour, and walk for 1 hour.
Filing No. 11-8 at CM/ECF p. 47. Mediema also submitted a treating source
statement in which she opined that Gentry was limited to varying degrees in her
ability to understand, remember, and apply information due to her depression and
anxiety. Mediema’s assessment of Gentry’s predicted time “off task” and potential
days absent from work were the same as Senseney’s assessment. Filing No. 115 at CM/ECF p 56-62. These evaluations, if given the controlling weight, would
have required the ALJ to find that Gentry was unable to perform any job in the
national economy and therefore was disabled. The ALJ, however, accorded “little
weight” to the opinions of Gentry’s treating physicians. Filing No. 9-2 at CM/ECF
p. 58.
Gentry argues that the ALJ failed to give the appropriate weight to the
evidence and failed to provide sufficient reason for doing so. Specifically, Gentry
argues that the ALJ identified her treating sources, Senseney and Mediema, but
gave “no obvious consideration to the regulation that provides the opinions of
treating sources are generally entitled to more weight.” See 20 C.F.R. §
10

404.1527(c)(2). The Commissioner argues that the ALJ properly evaluated the
opinion evidence and provided supported reasons for the weight he assigned to
each opinion.
“[A] treating physician's opinion regarding an applicant's impairment will be
granted ‘controlling weight,’ provided the opinion is ‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with other substantial evidence in the record.’” Prosch v. Apfel, 201 F.3d 1010,
1012–1013 (8th Cir.2000), quoting 20 C.F.R. § 404.1527(d)(2). The record must
be evaluated as a whole to determine whether the treating physician’s opinion
should control. Tilley v. Astrue, 580 F.3d 675 (8th Cir. 2009). The ALJ may discount
or disregard a treating physician’s opinion if other medical assessments are
supported by superior medical evidence, or if the treating physician has offered
inconsistent opinions. Hogan v. Apfel, 239 F.3d at 961 (8th Cir. 2001).
If an ALJ discounts a treating physician’s opinion, his or her opinion must
explain why the opinion was discounted. Here, the ALJ gave the opinions of
Senseney and Mediema “little weight,” specifically finding that the opinions were
not supported by the reliable evidence of record. Filing No. 9-2 at CM/ECF p. 58.
The ALJ observed that the “extreme opinions” of Senseney and Mediema are
inconsistent with Gentry’s “own admissions as to her activities of daily living.” Id.
Gentry testified that she tends to her own personal hygiene needs, she uses a
computer, uses Facebook to correspond with a small social circle, maintains a
relationship with her sisters, and can drive a car, prepare meals, and sit through a
movie on a weekly basis. Gentry also reported to physicians and physical
therapists that she was able, at times, to do yardwork, clean out her parents’ house
and her pool, take a trip to Omaha, and go shopping, and to a casino. Filing No.
9-11 at CM/ECF pp. 97, 101, 114; Filing No. 10-7 at CM/ECF pp. 46, 97.

11

The ALJ noted that Gentry had been diagnosed with depression and anxiety
with panic attacks related to traumatic events in her life, which is supported by the
evidence in the record. Although Gentry’s treatment notes indicate she often
presented as worried or sad, she also frequently presented with organized
thoughts and a normal affect, she maintained eye contact, she was fully alert,
oriented, cooperative, and on-task. Filing No. 9-2 at CM/ECF pp. 38, 58; Filing No.
9-10 at CM/ECF pp. 8, 11; Filing No. 9-11 at CM/ECF pp. 17, 111; Filing No. 10-5
at CM/ECF pp. 10, 95; Filing No. 10-6 at CM/ECF pp. 65, 98, 101; Filing No. 10-7
at CM/ECF p. 7; Filing No. 11-5 at CM/ECF p. 35-36; Filing No. 11-6 at CM/ECF
p. 5, 20; Filing No. 11-7 at CM/ECF pp. 8, 10, 12, 14, 18, 32, 35, 37, 39, 41, 43,
45, 47, 49, 51, 54, 56, 58, 60, 62, 64, 66, 68, 70. In addition, treatment notes from
the Cherry County Clinic indicated she presented with a “grossly normal” mental
status, and normal affect and/or judgment on numerous occasions between
September 8, 2014, and October 10, 2017. Filing No. 9-2 at CM/ECF p. 45; Filing
No. 9-11 at CM/ECF pp. 47, 74, 78; Filing No. 10-4 at CM/ECF p. 25; Filing No.
10-5 at Cm/ECF pp. 38, 45, 63, 67, 83, 110; Filing No. 10-6 at CM/ECF pp. 31, 84,
92; Filing No. 10-7 at CM/ECF p. 7, 24, 54, 60, 73; Filing No. 11-1 at CM/ECF p.
8; Filing 11-4 at CM/ECF pp. 8, 13, 18, 23, 27, 30, 44, 48, 52, 56, 61, 67, 80, 85,
90, 94. Treatment notes from the Cherry County Clinic also state Gentry has “done
well” with injections of ketamine, and she planned to wean from the medication in
May 2017. Filing No. 11-6 at CM/ECF p. 37.
Senseney cited Gentry’s low back pain and spondylolisthesis as additional
support for the standing, sitting, walking, lifting, and carrying limitations he
assessed. Filing No. 11-8 at CM/ECF p. 47. The ALJ also observed that
Senseney’s opinion is internally inconsistent, as he opined that Gentry would be
unable to lift less than ten pounds, but she would be able to carry less than ten
pounds (at least rarely). The ALJ noted that despite Gentry’s complaints of
significant back pain, testing showed that she had normal bone density in her
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lumbar spine and hips and a lumbar spine x-ray revealed “rather mild” facet
degenerative changes at L5-S1 and “mild” anterolithesis at L4-5. Filing No. 9-2
citing Filing No. 10-1 at CM/ECF p. 18. In addition, an examination in May 2016,
prior to Gentry’s shoulder surgery, revealed her to have a normal gait and she was
able to get on and off the exam table without difficulty. Filing No. 10-4 at CM/ECF
p. 25.
The ALJ’s decision includes his reasons for not giving controlling weight to
Senseney’s

and

Mediema’s

treating

source

statements,

stating

that

inconsistencies in the recommended lifting/carrying restrictions, as well the
inconsistency between the statements and Gentry’s own testimony regarding her
health and activities of daily living, justified giving the treating physicians’ opinions
less weight. These reasons are supported by the evidence of record and support
the ALJ’s conclusion.
B. Failing to Explicitly Discuss § 404.1572 Factors
Gentry also challenges the ALJ’s decision because the ALJ “ignored without
comment” multiple § 404.1572 factors which favored crediting Senseney’s and
Mediema’s opinions. These factors included the length of time Senseney treated
Gentry, Senseney’s board certification in family medicine, and the number of times
that Senseney and Mediema examined Gentry. Filing No. 16 at CM/ECF p. 21-22.
An ALJ who credits the opinion of a consulting physician over that of a treating
physician must explain why the consulting physician’s conclusions were
considered more persuasive. Factors to be considered in weighing medical
opinions from treating sources, nontreating sources, and nonexamining sources
include the factors listed by Gentry. (see SSR 06-03P, 2006 WL 2329939 (Aug. 9,
2006)). However, an ALJ “is not required to discuss every piece of evidence
submitted,” and his “failure to cite specific evidence [in the decision] does not
indicate that such evidence was not considered.” Black v. Apfel, 143 F.3d 383, 386
13

(8th Cir. 1998). As previously discussed, the ALJ reasons for not giving controlling
weight to Gentry’s treating physicians were supported by the record as a whole,
and there is nothing in the record to show that the ALJ “ignored” the necessary
factors.
C. Failure to Recontact Treating Physicians
Gentry argues that it cannot be reasonably disputed that Dr. Senseney and
PA Mediema’s opinions: (1) establish far greater limitations than the ALJ found;
and (2) establish that Plaintiff met her burden of proof to establish that she is
“disabled” pursuant to the Agency’s definition. Filing No. 16 at CM/ECF p 18. Thus,
she argues that the ALJ’s rejection of Senseney’s and Mediema’s opinions “based
upon his lay interpretation of the raw medical data was error.” Filing No. 16 at
CM/ECF p. 23.
Gentry asserts that if the ALJ “wanted to consider denying this claim” due to
questions regarding the consistency of Senseney’s and Mediema’s opinions, then
the ALJ should have sought additional opinion evidence, rather than denying the
claim. The Commissioner argues the ALJ was under no obligation to obtain
additional evidence if the ALJ determined that their opinions were inherently
contradictory or unreliable, and where the ALJ is able to determine from the record
whether the applicant is disabled. See Hacker v. Barnhart, 459 F.3d 934 (8th Cir.
2006).
The ALJ is required to recontact medical sources and may order consultative
evaluations only if the available evidence does not provide an adequate basis for
determining the merits of the disability claim. Sultan v. Barnhart, 368 F.3d 857, 863
(8th Cir. 2004), citing 20 C.F.R. §§ 416.912(e), 416.919a(b). The administrative
record in this case contains many medical records which provide an ample basis
upon which the ALJ could make an informed determination of the merits of
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Gentry’s disability claim. The ALJ did not recontact Gentry’s treating physicians or
order new consultative evaluations because they were not necessary.
Finally, Gentry argues that the ALJ’s rejection of Senseney’s and Mediema’s
opinions “based on his lay interpretation of the raw medical data was error.” Filing
No. 16 at CM/ECF p. 23. A “finding of disability is one reserved for the
Commissioner.” See Robson v. Astrue, 526 F.3d 389, 393 (8th Cir. 2008). Thus,
the ALJ was fulfilling his duty to weigh the evidence in the record before him.
2. Failure to properly address Gentry’s objections memorandum and rebuttal
evidence.
At step five, the ALJ relied upon the VE’s response to a hypothetical question
in finding Gentry could perform other work existing in significant numbers in the
national economy. Gentry argues that this reliance was improper, because the ALJ
failed to rule on or specifically address her objections memorandum and rebuttal
evidence, submitted after the hearing.
At the outset, it should be noted that Gentry objected once at the hearing,
specifically as to the “job incidents numbers” provided by the VE. The ALJ
responded “[i]t’s noted for the record and preserved for appeal.” Filing No. 9-2 at
CM/ECF p. 99. Although the ALJ did not use the specific verbiage to state the
objection was ‘overruled,’ when read in context, the ALJ clearly overruled Gentry’s
objection by indicating that the objection was raised and preserved to be
addressed by someone other than him and at the appellate level. Moreover, this
issue is not raised in Gentry’s brief. Rather, Gentry’s argument in this case focuses
on the ALJ’s consideration of her post-hearing objections and evidence.

15

A. Failure to Rule on Objections Memorandum
In her “Post-Hearing Memorandum and Objections to the Vocational
Witness’ Testimony,” Gentry stated that “Pursuant to HALLEX I-2-2-20 ‘the ALJ
must rule on the objection, either in writing, which shall then be marked as an
exhibit in the claim folder.’” Filing No. 9-8 at CM/ECF p. 2. The cited portion of the
Hearings, Appeals and Litigation Law Manual (HALLEX) relates to objections to
the issues, and provides that the party must submit the objection no later than five
business days before the date of the scheduled hearing. Gentry’s argument in this
case relates to objections to the evidence provided by the VE, and the objection
was not submitted until after the hearing. As such, the cited section of HALLEX is
not applicable to these circumstances.
Nonetheless, Gentry asserts on appeal that she has “constitutional and
statutory rights to challenge contrary evidence such as a testifying expert, in this
case, the VE.” Filing No. 16 at CM/ECF p. 29. She further asserts that “there can
be no serious dispute that a claimant has a right to present evidence and confront
evidence against him.” Id. citing 5 U.S.C. § 556(d) (2016). She refers to HALLEX
§ I-2-6-74(B), arguing that numerous courts have ruled that an ALJ’s failure to
adequately address, or address at all, objections/challenges to vocational
testimony is error, requiring remand because it undermines the step five finding
and effectively precludes meaningful judicial review. Filing No. 16 at CM/ECF p.
30.
HALLEX I-2-6-74(B) provides that an ALJ “may address the objection(s) on
the record during the hearing, in narrative form as a separate exhibit, or in the body
of his or her decision.” However, this provision refers to objections made during
the hearing, and is silent on how objections made after the hearing may be
addressed.

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In support of her argument, Gentry cites Delmonaco v. Berryhill, 2018 WL
1448558 (D. Or. Mar. 23, 2018), and Nunley v. Berryhill, No. CV H-17-0072, 2018
WL 1167700, at *7 (S.D. Tex. Feb. 14, 2018). Delmonaco held that the ALJ erred
in failing to rule on post-hearing objections, where the version of HALLEX I-2-5-55
(Obtaining Vocational Expert Testimony at the Hearing) applicable at the time of
the hearing required an ALJ to respond to post-hearing objections. Nunley held
that the ALJ’s failure to address the post-hearing objections was a clear violation
of HALLEX I-2-5-55 and, therefore, a legal error, explaining:
HALLEX outlines very specific requirements regarding the treatment
of the VE’s testimony. See HALLEX §I-2-5-55, I-2-6-74. Prior to the
updates in June 2016, HALLEX § I-2-5-55 stated, ‘If a claimant raises
an objection about a VE’s opinions, the ALJ must rule on the objection
and discuss any ruling in the decision.’ By its terms, the text applied
to all objections regardless of when they were filed. (emphasis
added).
Nunley 2018 WL 1167700, at *7 (S.D. Tex. Feb. 14, 2018) (emphasis added).
However, the current version of HALLEX I-2-5-55, dated June 16, 2016, went into
effect over a year prior to the ALJ hearing in this case and contains no requirement
that the ALJ review all objections, regardless of when they were filed. Thus, Nunley
is distinguishable, and no ruling on post-hearing objections was explicitly required.
B. Failure to Mention “outcome-determinative rebuttal evidence”
Gentry asserts that, “despite the fact that the objections memorandum was
part of the record at the time of the ALJ’s decision … the ALJ did not even mention
it.” Filing No. 16 at CM/ECF p. 31. She argues that the ALJ’s failure to mention the
evidence and objections is compounded by the fact that he specifically left the
record open after the hearing so that Plaintiff’s representative could submit, in
writing, objections to the vocational testimony. Filing No. 9-2 at CM/ECF p. 137.

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The Code of Federal Regulations provides that “[y]ou must submit any
written evidence no later than 5 business days before the date of the scheduled
hearing.” See 20 CFR 405.331(a) (2015). Gentry is correct that it is difficult to
anticipate what evidence will be provided by a VE, and to respond accordingly at
the hearing. It is permissible, in certain circumstances, to submit evidence after the
hearing and before the hearing decision is issued. Section 405.331(c) provides
that if a petitioner misses the deadline described in paragraph (a), the ALJ will
accept the evidence if there is a showing that there is a reasonable probability that
the evidence, alone or when considered with the other evidence of record, would
affect the outcome of the claim, and: 1) the action was misleading; 2) there were
limitations which prevented the claimant from submitting the evidence earlier; or,
3) there was an unusual, unexpected, or unavoidable circumstance beyond the
claimant’s control that prevented the submission of the evidence. Gentry
requested, and was granted, the opportunity to submit an objection and evidence
after the VE’s testimony. However, Gentry provides no authority which states that
an ALJ must consider such evidence submitted after the deadline explicitly set at
the hearing. See, also Brownell v. Berryhill, No. CV 17-11462-FDS, 2018 WL
615662, at *2 (D. Mass. Jan. 29, 2018)
During the hearing in this case, the ALJ stated the record remained open for
seven days following the hearing. But Gentry’s Post-Hearing Memorandum and
Objections to the Vocational Witness’ Testimony (Filing No. 9-8 at CM/ECF p. 213) was dated August 9, 2017, more than two weeks after the July 21, 2017
hearing. Even assuming Gentry’s post-hearing submission met the criteria of 20
CFR 405.331(a) (2015), the ALJ is not required to keep the record open
indefinitely: He was not obligated to review materials submitted outside of the
seven-day time frame he provided.

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Gentry was given the opportunity to object, and to fully respond to the VE’s
testimony, but she failed to do so in a timely manner. Since Gentry’s objections
were not timely raised, Gentry cannot validly claim her rights to object, to receive
a ruling on her objections, and to submit additional information for the ALJ’s
consideration, were denied in violation of her due process rights. The ALJ did not
err in failing to discuss Gentry’s untimely post-hearing evidentiary objections and
rebuttal evidence.
Upon review of the record as a whole, the court finds substantial evidence
supporting the ALJ’s decision.
Accordingly,
IT IS ORDERED:
1)

The decision of the Commissioner of the Social Security
Administration is affirmed.

2)

Judgment in accordance with this memorandum and order will be
entered by separate document.

November 19, 2018.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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