“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Ninth Circuit judge Ryan Nelson would deny an individual’s Social Security disability benefits application and discount the evidence presented by the individual’s testimony and opinion of her treating physician.  The July 2020 decision was Malkin v Saul.

Alina Malkin is a mom who struggled with significant anxiety and panic attacks. She was on maintenance drugs and had weekly psychotherapy. Despite being on maintenance drugs, she was afraid of taking medications, afraid of “being in unfamiliar places and afraid of driving on freeways. Family members helped her care for her children and she had to be accompanied by a family member when she needed to go to the grocery store. She was under the care of a treating physician who described her symptoms as “not sufficiently controlled to the point where they were non-severe.” Malkin applied for Social Security disability benefits, but an administrative law judge (ALJ) denied her application and she appealed to the district court.

The district court affirmed the ALJ’s ruling and concluded that Malkin did not have any “severe” conditions. Malkin appealed to the Ninth Circuit.

In a 2-1 decision, the majority reversed the district court’s ruling, explaining that the ALJ failed to provide “specific, clear and convincing reasons” for discrediting that Malkin suffers from serious anxiety and panic attacks. The majority went on to say that instead of considering Malkin’s entire testimony and evidence, the ALJ picked out “a few isolated instances of improvement” and used those to discount Malkin’s symptoms rather than the comprehensive notes of her treating physician. The ALJ’s determination that Malkin did not have any “severe” impairments was not supported by substantial evidence.

Judge Nelson disagreed. He argued that the majority applied the wrong standard of review. However, the majority explained that existing precedent makes clear that, “after determining whether the ALJ’s factual findings are supported by substantial evidence, the court should then take the additional step of asking whether those facts give rise to “clear and convincing” reasons for discrediting the claimant’s symptom testimony.”