                                                                             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                           NOT FOR PUBLICATION                               NOV 04 2014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




       1
       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 . . . .”)

                                            2
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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