Schow

dissenting in part and concurring in the judgment:

While I concur in the judgment, I respectfully suggest that the court fails to accord proper deference to the Administrative Law Judge’s (“ALJ”) rejection of Schow’s testimony concerning his subjective symptoms. The majority would apply *654 a “clear and convincing” standard of review of a credibility determination, but such standard is appropriate only where “there is no affirmative evidence suggesting [Schow] is malingering.” Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996).

In Robbins v. Social Security Administration, 466 F.3d 880 (9th Cir.2006), we appeared to hold that the clear and convincing standard is required when an ALJ fails to conclude that a claimant is malingering. However, as the majority’s disposition acknowledges, we cited Smolen for that proposition, which requires only the existence of “affirmative evidence suggesting” that a claimant is malingering. Smolen, 80 F.3d at 1283-84 . Our other cases addressing the clear and convincing standard more clearly adopt the Smolen test. See, e.g., Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir.2007) (“[If] there is no evidence of malingering, ‘the ALJ can reject…

MEMORANDUM ***

Michael R. Schow appeals the district court’s decision upholding the Social Security Administration Commissioner’s denial *650 of Schow’s application for Supplemental Security Income benefits. We reverse the district court and remand this matter for further proceedings. The parties are familiar with the factual and procedural history of this case, so we do not repeat it here.

The court reviews de novo the district court’s order affirming the administrative law judge’s (“ALJ”) denial of social security benefits. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007). The court will disturb the denial of benefits only if the decision “contains legal error or is not supported by substantial evidence.” Id.

1. The ALJ Correctly Rejected Five of Schow’s Claimed Errors.

We hold that five of Schow’s objections are not persuasive. First, the ALJ provided clear and convincing reasons for rejecting Dr. Colistro’s medical opinion regarding Schow’s purported mental impairments. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1996) (holding that an ALJ must provide clear and convincing reasons for rejecting an examining physician’s uncontradicted medical opinion). The ALJ properly…