Melvin Clyde Harshaw v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN CLYDE HARSHAW,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
No. 14-15510
D.C. No. 1:12-cv-01776-BAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding
Submitted September 11, 2015**
Before: LEAVY, GRABER, and OWENS, Circuit Judges.
Melvin Clyde Harshaw appeals the district court’s order affirming the
Commissioner of Social Security’s denial of his application for disability insurance
FILED
SEP 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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benefits and supplemental security income under Titles II and XVI of the Social
Security Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Harshaw contends that the administrative law judge (“ALJ”) erred by failing
to consider his pes planus, sciatica, post-traumatic stress disorder, and personality
disorder when determining at step two whether his impairments were severe.
Harshaw waived this issue by raising it for the first time before the district court.
See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). The existence of some
evidence in the medical records regarding these conditions is not sufficient to have
put the ALJ and the Appeals Council on notice that Harshaw claimed specifically
that these conditions constituted severe impairments. The step two determination
is a finding of fact and not a pure question of law for which the waiver rule may be
excused. See Silveira v. Apfel, 204 F.3d 1257, 1260 n.8 (9th Cir. 2000) (per
curiam).
In any event, the record fails to show that these conditions caused limitations
beyond those already considered by the ALJ in the assessment of Harshaw’s
residual functional capacity and in the sequential analysis of Harshaw’s claim.
AFFIRMED.
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