Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1990)

David A. LUNDY, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appelle.

No. 88-6739.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 1990.* Decided April 12, 1990.

Before NELSON, WILLIAM A. NORRIS and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

David Lundy applied for, and was denied, disability insurance benefits after injuring his back in a car accident. He contends that the Secretary of Health and Human Services ("Secretary") lacked substantial evidence to conclude he was not disabled. In particular, he argues that the Secretary should not have relied on the medical-vocational guidelines to decide whether he was disabled because he suffered not only from a physical impairment, but also from a mental impairment caused by his medication.

The district court found that the Secretary's decision to deny Lundy benefits was supported by substantial evidence and granted the Secretary's cross-motion for summary judgment. Lundy now appeals. We affirm the district court's judgment.

Lundy was examined by a variety of doctors, all of whom reported that Lundy complained of pain. Although they could not find the cause of the pain, they concluded, with the exception of the family practitioner, that Lundy was capable of performing at least sedentary work and that he was not as limited in his movements as he claimed to be.

Before his injury, Lundy had helped his wife to manage a gas station. After his injury, he still accompanied his wife to the gas station, took money from self-service customers, and assisted with some computer work. He was also able to drive to and from the gas station and to visit friends. However, Lundy claimed that he could only do these activities on a limited basis and complained of pain.

Lundy had the burden of establishing not only that an impairment existed, but also that it precluded him from engaging in all substantial gainful activity. See Sanchez v. Secretary of HHS, 812 F.2d 509, 511 (9th Cir. 1987). He has not met this burden. Although Lundy complained of pain, his examinations revealed that he was able to walk and bend, albeit in a limited way. His treating physicians concluded that he should be able to perform at least sedentary work, and only his family practitioner was willing to say that he was disabled.

Although it is difficult to assess claims of pain, we have looked at such indicia as a claimant's daily activities and his failure to follow or ignore a prescribed course of treatment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Here, Lundy managed to spend several hours at the gas station. And in spite of his complaints of pain, he failed to follow through on exercises and lifestyle changes he had been taught at a pain management program. Lundy's daily activities, doctors' reports, and lack of follow-up in particular, as well as the record as a whole, provide substantial evidence for the Secretary's finding that Lundy was able to perform sedentary work and was therefore not disabled.

Lundy's attempt to argue that his back medication has impaired his mental condition is to no avail. He failed to raise this argument when he was before the ALJ (including on remand). Moreover, he did not substantiate his claim with objective clinical findings. Therefore, the ALJ appropriately used the medical-vocational guidelines in finding that Lundy was not disabled.

For the reasons stated above, the district court's judgment is AFFIRMED.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

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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