William Carmickle v. Carolyn Colvin , 645 F. App'x 575 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM A. CARMICKLE, No. 13-36181
Plaintiff - Appellant, D.C. No. 3:12-cv-01629 MO
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted March 7, 2016
Portland, Oregon
Before: BERZON and WATFORD, Circuit Judges, and SAMMARTINO, District
Judge.**
Plaintiff-Appellant William A. Carmickle appeals the denial of his
application for social security disability benefits. Because the facts and procedural
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Janis L. Sammartino, United States District Judge for
the Southern District of California, sitting by designation.
history are familiar to the parties, we do not recite them here except as necessary to
explain our disposition. We review the district court’s decision affirming the
Commissioner’s denial of benefits de novo. Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009). For the reasons stated below, we
reverse.
After the Administrative Law Judge (“ALJ”) denied his claim for benefits,
Carmickle presented additional evidence to the Appeals Council. The Appeals
Council considered the newly presented evidence but declined to review the ALJ’s
decision denying benefits. Under Brewes v. Commissioner of Social Security
Administration, 682 F.3d 1157, 1159–60 (9th Cir. 2012), that additional evidence
became part of the administrative record. Accordingly, the district court was
required to consider that evidence “in determining whether the Commissioner’s
decision is supported by substantial evidence.” Id. at 1160.
The district court erred by concluding that substantial evidence supported
the ALJ’s decision in light of the additional evidence. In particular, the ALJ stated
that “there is no evidence to support a medically determinable mental
impairment.” Psychologist Dr. Emil Slatick’s report—which was one of four
pieces of additional evidence made part of the record under Brewes—found that
Carmickle suffered from “specific learning disorders in the area of Written
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Expression,” which at least in part explained his academic struggles and “ongoing
difficulties with learning,” among other cognitive impairments. Dr. Slatick
concluded that these difficulties “are likely to have a persisting negative impact on
his ability to perform adequately in academic, training and employment
environments.” In light of this report and the other evidence the Appeals Council
added to the record, which the ALJ never had the opportunity to consider, we
cannot conclude that substantial evidence supports the ALJ’s decision.
The ALJ should have the opportunity to address the additional evidence in
this case. We therefore reverse the judgment of the district court and remand with
instructions to remand to the ALJ for further proceedings.
REVERSED AND REMANDED.
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