Ferguson v. O'Malley -- When Not Accepting Limitations Described In Testimony Is a Rejection

The Ninth Circuit published Ferguson v. O'Malley on March 14, 2024. The divided panel used the clear and convincing standard to reverse the decision denying Ferguson's benefits. The dissent would affirm. 

The decision affirms the proposition that an administrative decision lacks the support of substantial evidence if the ALJ improperly rejected the symptom testimony. The decision relies on Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) and Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 

Judge Rawlinson in dissent asserts that the substantial evidence standard is not high and some evidence supports the ALJ decision. Judge Rawlinson relies on Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) and Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 

The characterization of a decision that does not properly address the testimony as stripping the ALJ decision of a foundation in substantial evidence is the source of the problem. Substantial evidence is a low bar. It gets the case past a directed verdict and is grounds for denying a motion for judgment not withstanding the verdict. According to Judge Rawlinson, there is evidence that Ferguson had less severe symptoms, i.e., the medical evidence. Could a factfinder rely on the medical evidence and reject Ferguson's testimony? In a civil trial, clearly that is the case. 

But this is administrative law. The ALJ must not only reach a permissible result but also reach that result for permissible reasons. The permissible result is the foundation of substantial evidence. The permissible reasons turns on the articulation standards. In essence, the decision holds that the ALJ did not have sufficient reasons for rejecting Ferguson's testimony. That sounds more an error of law rather than a failure of evidence. Therein lies the nuance. The reasons articulated were insufficient to persuade the reasonable mind under Biestek and therefore the decision lacks the support of substantial evidence. It would be easier and avoid Judge Rawlinson's dissent if the decision -- and the decades of precedent -- called a failure to state clear and convincing reasons for rejecting the symptom testimony an error of law and a failure of substantial evidence. The clear and convincing standard does invoke a mixed question of law and fact. 

Judge Rawlinson rails against the decision because the ALJ did not reject Ferguson's testimony but actually incorporated the testimony into the residual functional capacity assessment. The decision summarizes the record that the ALJ discounted the testimony about the severity and frequency of headaches caused by a history of epilepsy, Arnold-Chiari malformation, and headaches as a separate impairment. Ferguson has headaches that occur two to three times per week and last for up to two days. Judge Rawlinson says that the ALJ accepted the symptom testimony. The ALJ did find headaches but rejected the intensity and persistence of those headaches. This part of the dissent is semantically wrong. 

Judge Rawlinson doubles down on the ALJ reliance of activities of daily living. Ferguson watched television and played video games daily (Judge Rawlinson's emphasis). We should play along. Ferguson turns on the TV and plays games every day. He plays for hours and hours. Two or three days a week, he has a headache that lasts for two hours and he cannot watch TV or play games for those two hours. Is the fact that Ferguson watches TV or plays games for eight hours a day evidence that Ferguson could perform the sustained requirements of work on a regular work schedule? Of course not. One or two interruptions per week for up to two hours is an unacceptable interruption of the work pace and productivity required of competitive work. Taking car of wild cats, making meals, building models, attending to self-care, possessing the knowledge and ability to drive do not detract from an episodic impairment. 

If Ferguson had testified that he had headaches 16 hours a day and slept the other 8 hours, having any activity that required concentration to task would contradict the testimony. That was not his testimony according to the decision and the dissent. The substantial evidence standard is not high but it is not a trough either. Substantial evidence satisfies the reasonable mind. Having a host of activities of daily living does not negate the interruption of those activities two or three times per week for up to two hours per day. Garrison, 759 F.3d at 1016 addresses the difficulty in applying activities of daily living performed when the person can or wants to perform them to the rigors of performing work functions when the employer wants them done. 

Judge Sung joined by Judge Bea reached the right result. The ALJ does not have discretion to reject the testimony about the severity, persistence, and impact of symptoms on the ability to function simply by pointing to the medical evidence or that the claimant does not vegetate in a dark room. That is not the standard. The question is and has always been whether the person could get to work every day, remain productive throughout the day, and continue that pattern week after week, month after month. 

You are an employer. You have a simple job for Ferguson to do. He leaves early, arrives late, or is unproductive for up to two hours at a time twice a week. How long does that pattern last before Ferguson gets fired -- by you. Severe headaches that render the person unable to function in a work setting on a repeating basis cannot sustain work. 

The dissent is wrong. 

Hat tip to Alyson Young and Kevin Kerr. Lawyers do not make enough money on SSI cases in federal court. Lawyers do not make enough money in Social Security cases to warrant a trip to the Court of Appeals in any case. We take the cases because someone has to hold the agency's feet to the fire and someone has to correct persistent errors in the district courts. It is a loss leader. It is the right thing to do. We who journey into the federal courts have more lucrative things to do. But we seek justice because the system needs it.  

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Suggested Citation:

Lawrence Rohlfing, Ferguson v. O'Malley -- When Not Accepting Limitations Described In Testimony Is a Rejection, California Social Security Attorney (March 15, 2024)

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