Judge Jennifer Sung, nominated by President Biden to the Ninth Circuit Court of Appeals, wrote a 2-1 decision reversing a lower court and giving a person the opportunity to prove  his Social Security disability claim.  The March 2024 decision was in Conway v O’Malley.

What is the background of this case?

 Robert Conway suffers from the “severe” impairments of “degenerative disease of the lumbar spine” and “bipolar affective disorder.” Unable to work, he applied for Social Security disability benefits.

A Social Security Administrative Law Judge (ALJ) found that Conway was capable of performing “medium work” under agency rules and denied his application. A district court agreed, and Conway appealed to the Ninth Circuit.

 

How did Judge Sung and the Ninth Circuit Rule and Why is it Important?

Judge Sung wrote a 2-1 opinion that reversed the ALJ and the lower court and sent the case back to be reheard by the ALJ using proper legal standards. In particular, the ALJ ruling relied on a presumption in a previous Ninth Circuit case that the vocational expert who testified that Conway could perform medium work was “aware of the definition of ‘medium work’.” But the record in the case, Sung continued, indicated that the expert “did not understand” the definition as applied to Conway.

Judge Sung further explained that as a matter of law, the presumption could be rebutted in specific cases, as it was here. Given his apparent lack of understanding, she went on, the expert’s testimony “compels the conclusion” that “there are not enough jobs in the medium work range that Conway can perform” and that the ALJ decision was not supported by “substantial evidence” Although Judge Johnnie Rawlinson dissented and would have upheld the lower court ruling, Conway will receive another opportunity to prove that he is disabled.

Judge Sung’s decision is obviously important to Robert Conway and his application for disability benefits. It also establishes an important precedent in the Ninth Circuit, which includes California, Washington, Oregon, Alaska, Hawaii, Arizona, Montana, and Nevada, concerning proof of whether a disability applicant can perform work. In addition, the case serves as a reminder of the importance of promptly confirming fair-minded nominees like Judge Sung to our federal courts.