Saturday, September 24, 2022

Judge VanDyke is Just Wrong

 A memorandum disposition from the Ninth Circuit with a dissent should be published.  Jones v. Kijakazi is one such case.  Judge VanDyke issued a dissent in Jones to express his opinion that the court should affirm.  Judges Fletcher and Bybee reversed and remanded for further proceedings, which is the order of the court. 

Before getting too deep into the weeds, we must recognize that dissent is not a mere disagreement. A dissent has the objective of persuading the other members of the panel or to persuade future judges to rule in the manner urged. A dissent is not moaning and complaining that the majority got it wrong. Circuit Rule 36-2(g) describes an opinion "accompanied by a separate concurring or dissenting expression, and such author of such separate expression requests publication." If Judge VanDyke is serious about the content of his dissent -- that the majority got it legally wrong -- and wants to discourage other cases from committing similar error, then Judge  VanDyke should have asked for publication. 

We turn to the facts of the case in Jones. The majority describes the rejection of subjective limitation testimony because the extent of limitation was not fully supported by the record and Jones had activities of daily living. Judge VanDyke echoes the ALJ decision in the first paragraph of his dissent. Judge VanDyke urges a rule of law that the "long list of daily activities and chores" is always sufficient to permit rejection of symptom and limitation testimony. But that is not where Judge VanDyke starts. He starts with the proposition that the inconsistency with the medical evidence is alone sufficient.

Judge VanDyke relies on Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). Carmickle affirmed where the claimant testified to lifting 10 pounds occasionally, but a doctor testified to 10 pounds frequently. Carmickle relies on Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995). And the wheels fall off, exposing Carmickle as violating circuit law. Johnson cites the foundation of the excess pain doctrine: "once an impairment is medically established, the ALJ cannot require medical support to prove the severity of the pain. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir.1991)."

Judge VanDyke cites Chaudhry v.Astrue, 688 F.3d 661, 672–73 (9th Cir. 2012) for the proposition that the ALJ can prefer objective evidence over subjective evidence. That is not what Chaudhry holds. The treating physician found a somatization disorder but the examining physician found malingering. Chaudhry did not follow medical advice. Chaudhry does not stand for the proposition that the ALJ can prefer objective evidence over subjective evidence. 

Judge VanDyke cites Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Burch recites the same two-part test found in Johnson and nested in the en banc decision in Bunnell. "An ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain." (Cleaned up). 

Judge VanDyke cites Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). While Thomas mentions activities of daily living in reciting the facts and in the discussion of the excess pain finding, Thomas holds that the claimant's lack of candor about substance abuse "carries over to her description of physical pain." Thomas is not an ADL case.  Thomas is a truthfulness case. 

Judge VanDyke cites Osenbrock v. Apfel, 240 F.3d 1157, 1165–66 (9th Cir. 2001) for the proposition that an ALJ could reject pain testimony based on normal physical findings. Osenbrock did not get over the first criterion -- the existence of an impairment that could cause pain. We go back to Johnson for this principle, the claimant must establish the existence of an impairment. A normal physical impairment precludes the existence of an impairment that could cause pain. 

In a single paragraph, Judge VanDyke disposes of the context of Jones's activities of daily living. But context is everything. All homicides are not murder; some homicides are not crimes. Context matters. Activities of short duration terminated by symptoms do not translate to the work setting and do not suggest that the person can persist for sufficient time to perform work or work-like activities. Context matters because claimants "need not vegetate in a dark room in order to be eligible for benefits. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (cleaned up). 

We are not robbed of our commonsense and common experience. If anyone wants to see profoundly and obviously impaired individuals that meet or equal listings or that cannot sustain full-time work activity, go to the airport, the supermarket, the ball game, the movie theater, church, synagogue, temple, mosque, just go where people congregate and socialize. We have all seen people engaging in activities that ALJs point to as evidence of a capacity to engage in substantial gainful activity and seen people that obviously cannot. 

Let me be brazen and add to the list. Claimants for disability need not infantilize themselves and prostrate on the floor demanding that others around them take care of every basic human need.  Of course, people that lack a capacity for full-time work manage to attend to basic human needs of nourishment, self-care, and whatever pleasure they can eek out of their existence. SSA should not, and the courts should not permit, require that claimants for benefits act like infants unable to attend to any needs. Making a sandwich, pouring a bowl of cereal, frying an egg -- none of those things require the persistence of full-time work; none require the proximity and cooperation required of a work setting. SSA and the courts should not rob people of the dignity of life to enforce the social contract framed in the Act -- if you become unable to engage in substantial gainful activity, the federal government will provide a safety net whether earned (DIB) or as welfare (SSI). That's the bargain that frames the boundaries of public policy. We don't allow the disabled to fall from grace into want and then descend into destitution.  

And now, I must admit, I have changed my mind. Judge VanDyke should not ask that Jones become a published opinion. The dissent is not a powerful charge to course back to the law. It is a divergence from settled law framed in Bunnell that no judge or panel can modify. Judge VanDyke's dissent is just wrong. 

"Change my mind."


Suggested Citation:

Lawrence Rohlfing, Judge VanDyke is Just Wrong, California Social Security Attorney (September 24, 2022)

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 


  1. That would not meet the Stout test. Harmless implies that no reasonable adjudicator would reach a different result based on the record as a whole and the reasons that the ALJ actually stated.

  2. It would be harmless error under the Stout dissent and Molina holding.

  3. Clearly there are decisions that are wrong. If that were the majority holding, it would be wrong.

  4. The New Republic article about Judge VanDyke.