                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 21 2010

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




                            FOR THE NINTH CIRCUIT



THOMAS J. HIGLEY,                                No. 08-17205

              Plaintiff - Appellant,             D.C. No. 3:06-cv-00412-ECR-
                                                 RAM
  v.

RICK’S FLOOR COVERING, INC.,                     MEMORANDUM *

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                      Argued and Submitted October 6, 2010
                            San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.

       Thomas J. Higley appeals the district court’s summary judgment in favor of

Rick’s Floor Covering, Inc. regarding his discrimination claim under the

Americans with Disabilities Act (ADA). The court held that Higley had not




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
produced sufficient evidence to show that he was disabled as defined by the ADA.

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      Higley’s complaint alleged that he was limited in the daily life activities of

“walking, bending, sitting, standing, and being pain free.” However, Higley

produced no evidence concerning limitations on walking or bending. Further, on

appeal Higley does not argue that being pain free is a major life activity.

Therefore, we review only whether his ability to sit and stand were substantially

limited.

      To bring a successful ADA discrimination claim, a plaintiff must first prove

that he is disabled as defined by the ADA. See Braunling v. Countrywide Home

Loans, Inc., 220 F.3d 1154, 1156 (9th Cir. 2000). A disability is “a physical or

mental impairment that substantially limits one or more of the major life activities

of such individual.” 42 U.S.C. § 12102(2)(A) (2006). A substantial limitation

means one is “[s]ignificantly restricted as to the condition, manner or duration

under which an individual can perform a particular major life activity as compared

to the . . . average person in the general population . . . .” 29

C.F.R. § 1630.2(j)(1)(ii). Because we hold that Higley failed to meet his burden of

proof that his limitation was substantial, we decline to address whether Higley had

a physical impairment or whether sitting and standing are major life activities.


                                            2
      “A ‘substantial limitation’ is not a mere difference in an ability to perform a

particular act;” the limitation must in fact be substantial. Thornton v. McClatchy

Newspapers, Inc., 261 F.3d 789, 797 (9th Cir. 2001). This inquiry must consider

whether a person is still substantially limited after the impairment is corrected or

mitigated by medication or other measures. Sutton v. United Air Lines, Inc., 527

U.S. 471, 482-83 (1999), abrogated by ADA Amendments Act of 2008 Pub. L.

No. 110-325, 122 Stat. 3555.1 In determining whether a limitation is substantial,

we consider the nature and severity of the impairment, its duration, and the

permanent or long term impact of the impairment. 29 C.F.R. § 1630.2(j)(2). We

address each of these in turn.

      1. As to the nature and severity of the impairment, Higley failed to produce

evidence sufficient for a jury to determine that he was substantially limited

compared to the average person. Higley’s only evidence was his own vague

deposition testimony that he has “a hard time sitting for long periods” and “barely

can stand for a long time.” He never explained what a long time was, or whether

he was constantly limited or only limited when his back was out. Higley therefore



      1
       This court has held that the ADA Amendments Act is effective only
prospectively, therefore, Sutton is still controlling in this case. Becerril v. Pima
County Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir. 2009).


                                           3
offers no authority or evidence on which to base a finding that his restrictions are

significant restrictions compared to the average person. A mere limitation, without

more, is insufficient.

        2. As to the duration of Higley’s impairment, the record evidences that

Higley’s back condition is a chronic condition (a herniated disk). When the

claimed impairment is a chronic condition, we consider the specific manifestations

of the disease relative to the major life activity, rather than the duration of the

disease itself. See Fraser v. Goodale, 342 F.3d 1032, 1040-41 (9th Cir. 2003).

The instances when Higley’s back “goes out” requiring treatment are infrequent2

and brief in duration. Weekly injury reports never show Higley as injured for more

than one week at a time. The reported injuries were months apart, and he only

received treatment by his chiropractor once between July 2004 and September

2005.

        Although Higley’s back condition was permanent, evidence shows only an

occasional impairment and that treatment alleviated the pain; with treatment his

impairment was temporary—after “a few days” or “sometimes up to a week or so”


        2
        Although Higley claimed that, based on his chiropractor’s records, he was
injured 21 times at Rick’s, he offered no detail about these injuries. He did not
indicate which of these injuries were sustained during the relevant period (July
2004–September 2005) as opposed to a previous period of employment. The
chiropractic records submitted do not document 21 injuries in this period.

                                            4
Higley would be “out of pain and back to being [himself].” He could “just put a

back brace on and continue working.” Even when his back was out, medication

was successful in controlling the pain and allowing him to continue to work.

Under Sutton, we must consider Higley’s impairment as mitigated by medical

treatment. 527 U.S. at 482-83. The evidence strongly suggests that he was not, in

fact, substantially limited in his ability to sit or stand.

       3. As to the permanent or long term impact of the impairment, any impact

occurred nearly a year after his employment with Rick’s. Therefore, that evidence

has limited relevance to determining the severity of his limitation while employed

at Rick’s.

       AFFIRMED.




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