                                                                           FILED
                             NOT FOR PUBLICATION                            APR 05 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



PETER LUMB,                                       No. 08-35772

              Plaintiff - Appellant,              D.C. No. 2:07-cv-00029-SEH-
                                                  RKS
  v.

MICHAEL J. ASTRUE,                                MEMORANDUM *

              Defendant - Appellee.



                      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.


        *
             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).
      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.




                                           2
      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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