“Moreover, the expert’s reference to the ADA suggests not that he assumed that assembler jobs required accommodation, but that allowing for an employee to alter between sitting and standing is a prevalent accommodation in the workplace.”
How later courts described this case
- “Moreover, the expert’s reference to the ADA suggests not that he assumed that assembler jobs required accommodation, but that allowing for an employee to alter between sitting and standing is a prevalent accommodation in the workplace.”
- placing burden on the Commissioner at Step 5
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT September 17, 2021
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
CARLA RENEE HANSFORD, §
§
Plaintiff. §
§
VS. § CIVIL ACTION NO. 4:20-cv-01313
§
KILOLO KIJAKAZI, ACTING §
COMMISSIONER OF THE SOCIAL §
SECURITY ADMINISTRATION, §
§
Defendant. §
MEMORANDUM AND ORDER
Claimant Carla Renee Hansford seeks judicial review of an administrative
decision denying her application for disability insurance benefits under Titles II
and XVI of the Social Security Act (the “Act”). See Dkt. 1. Before me, with the
consent of the parties, are competing motions for summary judgment filed by
Hansford and Defendant Kilolo Kijakazi, the Acting Commissioner of the Social
Security Administration (the “Commissioner”).1 See Dkts. 18, 19. After reviewing
the briefing, the record, and the applicable law, Hansford’s motion for summary
judgment is GRANTED, the Commissioner’s motion for summary judgment is
DENIED, and this case is remanded to the Social Security Administration for
further proceedings.
BACKGROUND
Hansford applied for disability insurance benefits under Titles II and XVI of
the Act on April 26, 2017, alleging disability beginning February 2, 2017. Her
application was denied and denied again upon reconsideration. Subsequently, an
Administrative Law Judge (“ALJ”) held a hearing and found that Hansford was not
1 On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner of the Social Security
Administration and is automatically substituted as a party under Federal Rule of Civil
Procedure 25(d).
disabled. Hansford filed an appeal with the Appeals Council. The Appeals Council
denied review, making the ALJ’s decision final and ripe for judicial review.
APPLICABLE LAW
The standard of judicial review for disability appeals is provided in 42 U.S.C.
§ 405(g). Courts reviewing the Commissioner’s denial of social security disability
applications limit their analysis to (1) whether the Commissioner applied the
proper legal standards, and (2) whether the Commissioner’s factual findings are
supported by substantial evidence. See Estate of Morris v. Shalala, 207 F.3d 744,
745 (5th Cir. 2000). Addressing the evidentiary standard, the Fifth Circuit has
explained:
Substantial evidence is that which is relevant and sufficient for a
reasonable mind to accept as adequate to support a conclusion; it
must be more than a scintilla, but it need not be a preponderance. It
is the role of the Commissioner, and not the courts, to resolve conflicts
in the evidence. As a result, [a] court cannot reweigh the evidence, but
may only scrutinize the record to determine whether it contains
substantial evidence to support the Commissioner’s decision. A
finding of no substantial evidence is warranted only where there is a
conspicuous absence of credible choices or no contrary medical
evidence.
Ramirez v. Colvin, 606 F. App’x 775, 777 (5th Cir. 2015) (cleaned up). Judicial
review is limited to the reasons relied on as stated in the ALJ’s decision, and post
hoc rationalizations are not to be considered. See SEC v. Chenery Corp., 332 U.S.
194, 196 (1947).
Under the Act, “a claimant is disabled only if she is incapable of engaging in
any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir.
1992) (cleaned up). The ALJ uses a five-step approach to determine if a claimant
is disabled, including:
(1) whether the claimant is presently performing substantial gainful
activity; (2) whether the claimant has a severe impairment; (3)
whether the impairment meets or equals a listed impairment; (4)
whether the impairment prevents the claimant from doing past
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relevant work; and (5) whether the impairment prevents the claimant
from performing any other substantial gainful activity.
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (quoting Kneeland v.
Berryhill, 850 F.3d 749, 753 (5th Cir. 2017)).
The burden of proof lies with the claimant during the first four steps before
shifting to the Commissioner at Step 5. See id. Between Steps 3 and 4, the ALJ
considers the claimant’s residual functional capacity (“RFC”), which serves as an
indicator of the claimant’s capabilities given the physical and mental limitations
detailed in the administrative record. See Kneeland, 850 F.3d at 754. The RFC also
helps the ALJ “determine whether the claimant is able to do her past work or other
available work.” Id.
THE ALJ’S DECISION
The ALJ found at Step 1 that Hansford had not engaged in substantial
gainful activity since February 2, 2017.
The ALJ found at Step 2 that Hansford suffered from “the following severe
impairments: hypogammaglobulinemia (SCID), tracheobronchomalacia, chronic
bronchitis, diabetes mellitus, obstructive sleep apnea, obesity, hypertension,
gastroesophageal reflux disease and osteoarthritis (20 CFR 404.1520(c) and
416.920(c)).” Dkt. 14-3 at 14.
At Step 3, the ALJ found that none of these impairments met any of the
Social Security Administration’s listed impairments.
Prior to consideration of Step 4, the ALJ determined Hansford’s RFC as
follows:
[T]he claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the claimant cannot climb ladders, ropes or scaffolds. She is
unable to work at unprotected heights. The claimant should avoid
concentrated exposure to noxious fumes and gases. In addition, the
claimant can work in an office, booth or cubicle as well as wear a mask
while working to protect from airborne germs. The claimant is able to
work with things and not people. She should not have direct contact
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with the public but can have incidental contact with the public. She
may have contact with co-workers and supervisors with concern that
she not be exposed to infections, and would require precautions such
as [a] mask as needed. To a large extent contact with usual persons is
permitted as the body adapts to this, it is the new person that proves
a problem. Therefore, precautions would be more effective during the
first part of employment. This is fully considered in the vocational
testimony.
Id. at 18.
At Step 4, the ALJ found that Hansford was unable to perform her past work.
And, at Step 5, the ALJ, relying on the testimony of a vocational expert (“VE”),
concluded that “there are jobs that exist in significant numbers in the national
economy that [Hansford] can perform.” Id. at 26.
DISCUSSION
The issue on appeal is whether the ALJ met his burden of showing that there
are a sufficient number of jobs in the local or national economy that Hansford can
perform.2 See White v. Astrue, 239 F. App’x 71, 72 (5th Cir. 2007) (placing burden
on the Commissioner at Step 5). To satisfy his burden, the ALJ must identify jobs
that a person with Hansford’s RFC could perform “without requiring employers to
provide reasonable accommodations.” Belcher v. Berryhill, No. 6:17-cv-53, 2018
WL 3621211, at *5 (S.D. Tex. June 22, 2018).
As discussed above, the ALJ determined that Hansford would need to wear
a face mask to shield herself from airborne pathogens and bacteria. See Dkt. 14-3
at 18. The VE testified that there were jobs available in the national economy that
Hansford could perform with a face mask, but she explained that a person
requiring a face mask in the workplace would need to provide a hypothetical
employer with a medical statement. See id. at 67. The VE clarified that people
2 Hansford also argues that the ALJ improperly weighed the opinion evidence of
Hansford’s treating physician, Dr. Quesada. Because I find the accommodated work issue
to be dispositive, I do not reach the treating physician argument.
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routinely wear masks in the workplace “[o]nce they get the work statement and
[it’s ap]proved by the employer.” Jd. at 68. Then came this exchange between the
ALJ and the VE:
Q@ Do you think that would reduce the numbers of the jobs that
you've identified?
A With the requirement for the mask?
Q Yeah.
A Ne.
Id. That was the end of the discussion. From this brief exchange, the ALJ
determined that Hansford was not disabled because she could perform jobs
existing in the national economy. Based on the ALJ’s RFC and the exchange with
the VE, Hansford argues that the mask requirement, as described by the VE,
impermissibly constitutes a reasonable accommodation under the Americans with
Disabilities Act (““ADA”).3
Federal courts have explained that the ALJ may not include in his
hypothetical, and a VE may not assume, that the claimant will receive a reasonable
accommodation under the ADA when determining whether there are jobs existing
in the national economy that the claimant can perform. See Arthur v. Saul, No.
2:19-cv-186, 2020 WL 5701885, at *4 (E.D. Va. Sept. 23, 2020). Instead, the ALJ
must inquire whether there are any jobs the claimant can perform without
requesting an accommodation. Belcher, 2018 WL 3621211, at *5. The issue here is
that I cannot tell from the VE’s testimony whether jobs exist that Hansford could
perform without submitting a medical statement and securing approval from the
hypothetical employer. Cf. Arthur v. Saul, No. 2:19-cv-186, 2020 WL 6381136, at
* 4 (E.D. Va. June 3, 2020) (affirming ALJ decision because “the VE’s testimony
3 The Commissioner does not contest Hansford’s characterization that the mask
requirement constitutes a reasonable accommodation under the ADA. Accordingly, for
the purpose of this discussion, I assume without deciding that Hansford is correct in this
regard.
was not contingent on potential employers providing any reasonable
accommodations” and collecting cases); Harris v. Colvin, No. 3:12-cv-2302, 2013
WL 4517866, at *14 (N.D. Ohio Aug. 21, 2013) (“The VE specifically testified that
these jobs would be available even with the need for sunglasses and five[-]minute
bathroom break limitations.”). Likewise, I cannot tell whether the VE was
assuming that the employers identified would require Hansford to obtain
permission first or whether it is an accommodation often allowed without any
formal process. Cf. Jones v. Apfel, 174 F.3d 692, 694 (5th Cir. 1999) (“Moreover,
the expert’s reference to the ADA suggests not that he assumed that assembler jobs
required accommodation, but that allowing for an employee to alter between
sitting and standing is a prevalent accommodation in the workplace.”). In short,
the record is incomplete.
The Commissioner argues that the ALJ’s questions to the VE “clearly [were]
asking about jobs Plaintiff could perform if she chose to wear a mask.” Dkt. 19-1 at
3. As discussed above, the VE’s testimony is anything but clear. At most, the VE’s
testimony establishes that the number of jobs available would remain the same
whether Hansford needed to wear a mask or not. This testimony does nothing to
revoke the VE’s prior testimony that Hansford would need to provide a medical
statement to the employer and have her request to wear a mask approved by the
employer. That’s the critical inquiry—did the VE identify jobs that would not
require Hansford to request reasonable accommodations under the ADA? If so,
then Hansford is not disabled. If not, then Hansford is incapable of substantial
gainful activity and is therefore disabled under the Act. I simply cannot tell from
the hearing transcript or the ALJ’s decision.
The Commissioner argues that the ALJ’s inclusion of the face mask
requirement in Hansford’s RFC is wrong and unsupported by the administrative
record. See Dkt. 19-1 at 3–5. According to the Commissioner, Hansford’s treating
physician did not “tell her that she needed to wear a mask,” and Hansford “did not
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testify that she wore one whenever she left the house” or when she went to doctor
appointments. Id. at 4. But, as Hansford points out, “[t]he ALJ determined the
RFC and included the limitations regarding Plaintiff’s use of a mask,” even though
the record allegedly does not support that finding. Dkt. 20 at 2. In fact, the ALJ
determined that a face mask was required after speaking with the agency’s
physician, Dr. Anigbogu. See Dkt. 14-3 at 58. I am not going to second-guess the
ALJ’s determination. See Bennett ex rel. Bennett v. Saul, No. 3:19-cv-00064, 2019
WL 6255235, at *1 (S.D. Tex. Nov. 22, 2019) (An “ALJ’s decision must stand or fall
with the reasons stated in the final decision” because I cannot consider “post hoc
rationalizations for an agency decision.” (cleaned up)). The ALJ determined that
Hansford needed a face mask to work. He then determined that Hansford was not
disabled based on the VE’s testimony that jobs exist in the national economy that
Hansford could perform if she provided a medical statement to the employers and
obtained approval to wear the mask. This is error. See Singleton v. Berryhill, 3:17-
CV-00576-MGG, 2018 WL 4579711, at *4 (N.D. Ind. Sept. 25, 2018) (“By allowing
the vocational expert to provide testimony about reasonable accommodation . . . ,
the ALJ has not met his burden at Step 5 of the disability analysis and has erred by
injecting this reasonable accommodation analysis into his disability
determination.”). The only question remaining is whether this error is harmful.
An error is harmless “when it is inconceivable that a different administrative
conclusion would have been reached absent the error.” McNeal v. Colvin, No. 3:11-
cv-02612-BH-L, 2013 WL 1285472, at *27 (N.D. Tex. Mar. 28, 2013). The error
here is not harmless because I cannot determine whether the VE identified jobs
that would not require Hansford to obtain a medical statement and request a
reasonable accommodation. See Singleton, 2018 WL 4579711, at *3 (remanding
where “the ALJ relied on testimony that the vocational expert was not qualified to
provide with respect to an arguably reasonable accommodation under the ADA”).
I am uncomfortable guessing as to whether such jobs exist. It is conceivable that
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the ALJ could determine that Hansford is incapable of substantial gainful activity
because no available jobs would permit her to wear a face mask without an
approved medical statement. The opposite conclusion is just as likely. Remand is
appropriate.
CONCLUSION
For the reasons provided above, Hansford’s motion for summary judgment
is GRANTED, and the Commissioner’s motion for summary judgment is
DENIED. This case is remanded to the Social Security Administration for further
proceedings consistent with this opinion.
SIGNED this __th day of September 2021.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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