Panozzo v. Barnhart

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 the legal standard for discrediting claimant testimony when there is no affirmative evidence of malingering. “Once a claimant produces medical evidence of an underlying impairment [as Panozzo has], the Commissioner may not discredit the claimant’s testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998) (citing Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir.1991) (en banc)). “Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s testimony must be ‘clear and convincing.’ ” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995)); see also Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir.1996). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834.

Here, the ALJ, citing SSR 96-7p, made one finding suggesting malingering and several findings suggesting lack of credibility as to symptom severity. In the end, none are supported by the record.

First, the ALJ suggested Panozzo was malingering because his “use of the cane for support defies credulity. There is no impairment of the lower extremities or spine which would warrant any need for an assistive device.... ” That was not true. Panozzo had back problems, supported in the record by x-rays and Dr. Phillips’s cervical spondylosis diagnosis. Moreover, Panozzo testified that he “use[d] [the cane] everyday for support and especially when [he] get[s] so tight that [the pain] goes down [his] back, the muscles tighten up down into [his] back and when it gets [t]o his hips it’s like a clamp pulling [him] *91forward.” ER 117. Based on the record, Panozzo’s use of a cane was not affirmative evidence of malingering.

Second, the ALJ noted Panozzo’s medical treatment was “routine, conservative and infrequent.” But the ALJ did not suggest what further treatment would be appropriate. Panozzo has been seen by many doctors since 1992, and had at least 15 visits in the 1994-1998 period. It appears he followed his treating physician’s advice to see him every three to six months; he saw Dr. Phillips at least 9 times from January 1995 through 1997. See Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir.1999) (“Particularly because none of the many physicians Regennitter has seen has suggested effective treatment for his pain, the amount of medical treatment Regennitter has received is not necessarily inconsistent with his complaints.”).

Third, the ALJ noted, “he testified that he washes dishes, drives an automobile, prunes rose bushes, and goes grocery shopping with his wife.” But these findings are somewhat misleading. Panozzo testified that he did no housework at all. ER 117. He said that he helped his wife with the dishes. ER 118. He said he did not do any sweeping. Id. When asked if he did “any yard work,” he responded, “I try to do a little pruning on rose bushes, little bushes that I have at the house when I’m capable of doing so.” Id. As for shopping, Panozzo noted that he did some but qualified this admission by stating he goes for a “half hour” and his wife “does the heavy shopping by herself.” Id. With regard to driving, Panozzo said he gets “all tight and cramped up” after even a “half hom'” period. ER 120. These activities are not inconsistent with Panozzo’s claimed need to rest during the day. “Only if the level of activity were inconsistent with Claimant’s claimed limitations would these activities have any bearing on Claimant’s credibility.” Reddick, 157 F.3d at 722.

In sum, none of the ALJ’s findings detract from Panozzo’s credibility on his need to rest. Because the Commissioner failed to meet her burden of showing Panozzo had the residual functional capacity to work full-time, and the record is fully developed, we reverse and remand for award of benefits.

REVERSED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.