Kelly Engelhardt v. Carolyn Colvin , 588 F. App'x 551 ( 2014 )

FILED
NOT FOR PUBLICATION NOV 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY J. ENGELHARDT, No. 13-35328
Plaintiff - Appellant, D.C. No. 4:12-cv-00033-SEH
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted October 7, 2014
Portland, Oregon
Before: KOZINSKI, Chief Judge, and FERNANDEZ and FISHER, Circuit Judges.
Kelly Engelhardt appeals the judgment of the district court affirming the
denial of his claim for disability benefits under the Social Security Act. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Substantial evidence supports the Administrative Law Judge’s (ALJ)
finding that Engelhardt’s impairments did not meet or exceed a listed impairment
because he was able to ambulate effectively by August 2008. See 20 C.F.R. Part
404, Subpt. P, App. 1, Part A, §§ 1.02, 1.05; Sullivan v. Zebley, 493 U.S. 521, 530
(1990). Engelhardt’s physical therapist noted he was able to walk comfortably
with his prosthesis and no walking aids. Engelhardt’s prosthetist noted he was able
to walk with increased speed and had “some discomfort at times but [was] doing
well” with the new, permanent prosthesis. Engelhardt testified he travels without
assistance to and from school, participates in household chores and childcare and
uses a cane only “[t]wo or three times a month . . . for balance.”1
2. The ALJ included all of Engelhardt’s limitations supported by the
record in his residual functional capacity determination and the hypothetical
question to the vocational expert. See 20 C.F.R. § 416.920(a)(4)(iv)-(v); Thomas
v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). Although Engelhardt contends the
ALJ ignored evidence regarding the severity of the injury to his right foot, the
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Use of a cane does not establish an inability to ambulate effectively
because it does not limit the function of both upper extremities. See 20 C.F.R. Part
404, Subpt. P, App. 1, Part A, § 1.00(B)(2)(b)(“[E]xamples of ineffective
ambulation include . . . the inability to walk without the use of . . . two canes . . . .”)
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record does not contain evidence that the bone protrusion in his right foot caused
any limitations beyond those recognized in the residual functional capacity.
Engelhardt also contends the ALJ failed to identify clear and convincing
reasons for rejecting his testimony. Engelhardt does not specify which portions of
his testimony he believes the ALJ improperly found to be not credible. The ALJ
found Engelhardt was able to walk one and one-half blocks at a time, stand for 15
minutes at a time and sit for one hour at a time. Those findings were consistent
with Engelhardt’s testimony. Engelhardt did not testify that he had specific
physical or mental limitations beyond those recognized in the residual functional
capacity determination. As a result, even if the ALJ erred in rejecting certain of his
testimony as to the severity and limiting effects of his impairments, any error was
harmless.
AFFIRMED.
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