Panozzo

MEMORANDUM *

Claimant-Appellant Joseph Panozzo appeals from the district court’s grant of summary judgment to the Commissioner of Social Security, denying disability insurance benefits under Title II of the Social Security Act. Because the parties are familiar with the facts, we do not recite them unless necessary. We reverse and remand for award of benefits.

We have long assessed disability-benefit eligibility under a five-part test. See, e.g., Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.2001); 20 C.F.R. § 404.1520 (f). Both sides agree that the dispute arises at step five of the five-step test, where the burden has shifted to the Commissioner to show that Panozzo has the residual functional capacity to perform some other substantial gainful activity on a “regular and continuing basis.” Id. During Panozzo’s disability hearing, the Commissioner’s vocational expert acknowledged that there would be no full-time jobs for someone with all of Panozzo’s attributes if extended rest breaks were needed. Panozzo testified that he needed extended rest breaks, but the ALJ rejected Panozzo’s testimony. This rejection of Panozzo’s subjective pain testimony was not in accord with…

dissenting.

When an ALJ’s decision is supported by substantial evidence and is not based on legal error, it should not be disturbed. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989). The district court’s grant of summary judgment for the Commissioner of Social Security was correct and should be affirmed.

The ALJ is responsible for making credibility determinations. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998). If there is no affirmative evidence of malingering, the ALJ must present clear and convincing reasons for rejecting a claimant’s testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995). In this case there was both affirmative evidence of malingering and additional clear and convincing reasons for rejecting Panozzo’s testimony.

The opinion of the court recognizes that the ALJ’s determination that Panozzo uses a cane without any medical reason would be evidence of malingering, if supported by the record. The ALJ based its conclusion on Dr. Rand’s 1995 report, which found that Panozzo’s cervical spine had a full, active range of motion and did not discuss any lower extremity impairment. Dr. Rand noted that Panozzo purported to use a cane for balance, but did…