The opinion
WEINER, J., District Judge,
concurring:
While I agree with the result reached by Judge Canby, and the “no per se estoppel” principle announced in Johnson v. Oregon, 141 F.3d 1361 (9th Cir.1998), I -write separately to discuss one point.
Judge Canby concludes, based on Johnson , that Lujan’s statement in his application for Social Security disability benefits — that he was “unable to work” — is more readily construed as an assertion that he was eligible for total disability benefits, rather than as an unconditional representation that he was completely disabled for all work-related purposes. Slip op. at 589-90. However, in a Social Security disability case, one attests that he meets a statutory requirement that he has some medically determinable basis for an impairment that prevents him from engaging in any “substantial gainful activity” for a statutory twelve-month period. 42 U.S.C. 423(d)(1). Thus, I would not construe such a statement as narrowly as would Johnson . Nonetheless, I agree that a representation of inability to work for Social Security purposes is not per se inconsistent with a claim of ability to work under ADA, since ADA provides for workplace accommodation while Social Security does not. Given that there was no evidence of a “knowing misrepresentation to or even fraud on the court,” Johnson, 141 F.3d at 1369 (quoting Ryan Operations G.P. v. Santianu-Midwest Lumber Co., 81 F.3d 355, 362-63 (3d Cir.1996)), applying judicial estoppel was therefore not appropriate here.