CONWAY V. O'MALLEY, No. 22-35427 (9th Cir. 2024)
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The plaintiff, Robert Conway, appealed a decision by the district court that upheld the denial of his social security benefits by an administrative law judge (ALJ). The ALJ had found that Conway could perform "medium work" based on the testimony of a vocational expert. Under Terry v. Saul, the term "medium work" was presumed to imply a six-hour standing and walking limitation.
However, Conway argued that this presumption was rebutted during the cross-examination of the vocational expert. When asked if someone could perform medium work if they were only able to be on their feet for six hours maximum, the expert responded that the three sample occupations provided would not be possible and it would be difficult to provide substitute unskilled, medium occupations.
The United States Court of Appeals for the Ninth Circuit agreed with Conway, finding that the vocational expert's significantly different responses revealed that the expert did not understand the ALJ’s hypothetical to impliedly include a six-hour standing and walking limitation. As such, the expert’s response to the ALJ’s question had no evidentiary value to support the ALJ’s finding that Conway could perform jobs in the national economy. The court concluded that the error was not harmless and reversed the district court’s judgment, remanding the case to the Commissioner of Social Security for further proceedings.
Court Description: Social Security The panel reversed the district court’s judgment upholding the denial of social security benefits by an administrative law judge (“ALJ”), and remanded with the instruction that the district court remand to the agency for further proceedings.
The ALJ found that claimant had the residual functional capacity to perform “medium work” as defined in 20 C.F.R.
404.1576(c) with some limitations. At step five of the disability determination analysis, the ALJ—relying solely on the vocational expert’s testimony—found that claimant could perform other work that existed in significant numbers in the national economy, and accordingly, denied disability benefits.
Pursuant to Terry v. Saul, 998 F.3d 1010, 1014 (9th Cir.
2021), the panel presumed that the vocational expert was aware of the definition of the term “medium work,” and that the ALJ and the expert would have shared an understanding that the term “medium work” implied a six-hour standing and walking limitation.
Claimant alleged that the Terry presumption was rebutted on cross-examination of the expert. The panel held that the presumption was rebuttable, and that the presumption was rebutted in this case. The expert’s significantly different responses to the ALJ’s and counsel’s questions revealed that the expert did not understand the ALJ’s hypothetical to impliedly include a six-hour standing and walking limitation. Because of this, the expert’s response to the ALJ’s question had no evidentiary value to support the ALJ’s finding that the plaintiff can perform jobs in the national economy. The error was not harmless because the expert’s testimony compels the finding that there are not enough jobs in the medium work range that claimant can perform. Consequently, the panel remanded to the Commissioner of Social Security so that an ALJ can further develop the record and make specific findings on whether claimant had transferable work skills.
Judge Rawlinson dissented because the majority opinion does not adhere to the substantial evidence standard of review and fails to give proper deference to the ALJ’s decision. She would hold that the ALJ’s decision was supported by substantial evidence.
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