“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 Lawrence VanDyke would have denied a man Social Security disability benefits despite a record that failed to indicate ineligibility. The July 2020 case was Austin v. Saul.
An administrative law judge (ALJ) denied Evan Roy Austin’s application for disability benefits, a decision that was upheld by a district court. But a three-judge Ninth Circuit panel that included George W. Bush nominee Jay Bybee reversed the ruling as not legally supportable, over VanDyke’s dissent.
The ALJ had discounted supportive testimony by Austin’s adult son Kamryn as too dependent on his father’s “less than credible” complaints. But as the majority pointed out, Kamryn lived with his father, “observed him every day,” and was in a position to provide a first-hand account of his worsening condition. The ALJ was required either to give a valid reason for discounting Kamryn’s testimony (which she did not) or to treat it as bolstering his father’s credibility.
The ALJ had also discounted Austin’s own credibility. Under circuit precedent, unless there is “affirmative evidence of malingering,” an ALJ must articulate “specific, clear, and convincing reasons” for discounting an applicant’s credibility. But the panel pointed out several instances where the ALJ’s explanations “were either contradicted or unsupported by the record.”
In his dissent, Judge VanDyke concluded that there was, in fact, “affirmative evidence of malingering” by Austin that justified lesser scrutiny of the AFJ’s decision. He cited one particular doctor’s statement as support. But the majority noted that this doctor had simply written down “signs of malingering” with no explanation, which is not enough to constitute affirmative evidence—especially since the ALJ herself apparently did not cite this as evidence for her adverse credibility determination.