                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                            SEP 15 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
MELVIN CLYDE HARSHAW,                            No. 14-15510

               Plaintiff - Appellant,            D.C. No. 1:12-cv-01776-BAM

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

               Defendant - Appellee.


                    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




          *
             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).
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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