Magistrate Judge Breathes Life into Plaintiff’s Disability Claim, Arising from Past Concussions

Sep 10, 2021 | Miscellaneous

A magistrate judge from the Southern District of Texas has found mistakes in an administrative court’s decision, which denied the application of a former NFL player for disability insurance benefits under Title II of the Social Security Act. Thus, the court granted the appeal and remanded the case for further proceedings.

The plaintiff in the case was Robert E. Wilson, Jr., a former NFL player. In retirement, Wilson learned that he suffers from various symptoms that are allegedly consistent with a chronic traumatic encephalopathy (CTE) diagnosis.

Based on his purported CTE symptoms and other ailments, Wilson filed an application for benefits with the Social Security Administration on August 23, 2017, alleging that his disability beginning January 15, 2012.

His application was denied and denied again upon reconsideration. Subsequently, an Administrative Law Judge (ALJ) held a hearing and found that Wilson was not disabled. Wilson appealed the decision to the Appeals Council. The Appeals Council denied review, making the ALJ’s decision final and leading to the instant judicial review.

The standard of judicial review for disability appeals is provided in 42 U.S.C. § 405(g). See Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). 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 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).

The court continued, noting that “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). 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 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 court then examined the ALJ’s decision:

  1. Wilson had not engaged in substantial gainful activity “during the period from his alleged onset date of January 15, 2012 through his date last insured of September 30, 2018.”
  2. Wilson suffered from “the following severe impairments: depression, cognitive disorder, arthritis of the shoulders and obesity.”
  3. None of these impairments met any of the Social Security Administration’s listed impairments.

“Prior to consideration of Step 4, the ALJ determined Wilson’s RFC as follows:

The claimant had the RFC to perform medium work as defined in 20 CFR 404.1567(c). The claimant can occasionally reach overhead. He requires a low stress work environment with simple and repetitive tasks. He can have occasional contact with the public.

“At Step 4, the ALJ found that Wilson was unable to perform his past work as a caterer’s helper or dining room attendant. And, at Step 5, the ALJ concluded that there are jobs that exist ‘in significant numbers in the national economy that Wilson can perform.’ Id. at 30.”

The court noted that to determine whether a claimant is disabled, “the ALJ generally asks a vocational expert (VE) whether a hypothetical person with the claimant’s RFC can perform jobs that are available in the national economy. In this appeal, Wilson argues that the ALJ posed a hypothetical question to the VE that failed to include Wilson’s nonexertional limitations as described in the ALJ opinion. Simply put, Wilson contends that the ALJ posed a flawed hypothetical to the VE.”

If proven, a “defective hypothetical is reversible error.” See Boyd, 239 F.3d 698, 708 (5th Cir. 2001); Orosco v. Comm’r of Soc. Sec. Admin., 171 F. Supp. 3d 539, 544 (E.D. Tex. 2016).

In the instant case, the ALJ posed the following hypothetical to the VE during the hearing:

“If I have a person that’s approaching . . . age 50 during the process of the hearing time, 12th grade education. We have a medium RFC, limited to occasional overhead, simple instructions only. They should be simple repetitive instructions with occasional public contact and a low stress environment as defined [by] the doctor. Do you have jobs at medium that such a person could perform?

“Within the hypothetical, the ALJ references a low stress work environment ‘as defined by the doctor,’ not as defined by the ALJ,” wrote the court. “The doctor referenced by the ALJ is Ashok Khushalani, a board-certified psychiatrist who testified in the administrative hearing. In pertinent part, Dr. Khushalani offered the following testimony regarding a low stress work environment:

A He should be able to do simple repetitive tasks with occasional public contact.

Q What about stress?

A In a low stress environment he should be okay.

Q He needs a low stress environment?

A Yes, sir.

Q What about contact with workers, coworkers, and supervisors? Is there a limitation on that?

A I don’t see any limitation on that except —

Q Okay.

A — except the public contact should be limited.

“When specifically asked what he meant by low stress, Dr Khushalani stated that he meant ‘the individual is limited to one or two steps and there’s no quotas, or you know, impose an imposition of certain things to be done within a certain time.’ Notably, Dr. Khushalani’s definition does not include nonexertional limitations regarding workers, coworkers, and supervisors; he simply does not believe that Wilson had any such limitations.

“In short, Dr. Khushalani provided one definition of a low stress work environment at the administrative hearing that included no limitations on working with others, and the ALJ rendered an opinion afterwards that provided an entirely different definition that did include limitations on working with others. The error arises because only Dr. Khushalani’s definition of a low stress work environment made it to the VE. The VE did not have an opportunity to consider the limitations the ALJ identified in his opinion regarding Wilson’s nonexertional limitations with respect to supervisors, coworkers, and peers.

“Instead, the VE only considered whether the jobs were limited to one or two steps without production quotas. This is reversible error. See Walker v. Berryhill, No. 7:16-CV-00150-O-BP, 2017 U.S. Dist. LEXIS 214742, 2017 WL 6883894, at *5 (N.D. Tex. Dec. 19, 2017) (‘Because the hypothetical question did not reasonably incorporate all disabilities of the claimant recognized by the ALJ, the question is defective, and remand is required.’)”

Thus, the court granted Wilson’s motion.

Wilson v. Kijakazi; S.D. Tex.; CIVIL ACTION NO. 3:20-cv-00208; 7/30/21

Attorneys of Record: (for plaintiff) Karl E Osterhout, LEAD ATTORNEY, PRO HAC VICE, Osterhout Berger Disability Law LLC. (for defendant) Kadi Shay Rowe, LEAD ATTORNEY, Social Security Administration.

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