Peter Lumb v. Michael J. Astrue

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER LUMB,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE,
Defendant - Appellee.
No. 08-35772
D.C. No. 2:07-cv-00029-SEH-
RKS
MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted December 18, 2009**
San Francisco, California
Before: BEEZER, HALL and T.G. NELSON, Circuit Judges.
Peter Lumb appeals the district court’s order affirming the Social Security
Administration Commissioner’s decision denying his application for Disability
Insurance Benefits.
FILED
APR 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
We review de novo a district court’s order affirming the Commissioner’s
decision to deny benefits. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
We reverse the Commissioner’s decision if it is based on legal error or is not
supported by substantial evidence. Id. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm the district court’s order.
The facts of this case are known to the parties. We do not repeat them.
The Commissioner’s decision is supported by substantial evidence in the
record and is not based on legal error. The administrative law judge (“ALJ”)
properly followed the five-step sequential test of 20 C.F.R. § 404.1520.
Lumb’s attempt to challenge the ALJ’s determination that his mental health
impairment is not severe fails because he did not contest it in the district court. See
Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
Lumb’s impairment does not meet any listing contained in 20 C.F.R. pt. 404,
subpt. P, Appx. 1.
No medical evidence in the record is inconsistent with Lumb’s residual
functioning capacity as determined at his disability hearing, and Lumb presents no
additional evidence contradicting the determination that he is capable of
performing his past relevant work.

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3
Insofar as Lumb challenges the ALJ’s credibility finding, we cannot second
guess an ALJ’s credibility determination that is supported by substantial evidence
in the record. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (citing
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)).
Substantial evidence supports the ALJ’s credibility determination.
Lumb’s remaining contentions lack merit.
AFFIRMED.

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