Paul W. Angevine v. CAROLYN W. COLVIN, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL W. ANGEVINE,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,**
Defendant - Appellee.
No. 11-15678
D.C. No. 1:09-cv-01496-GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Argued and Submitted October 10, 2013
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
Paul W. Angevine appeals the district court’s judgment affirming the
decision of the Acting Commissioner of Social Security, which denied his
FILED
OCT 16 2013
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.
** Carolyn W. Colvin, Acting Commissioner of Social Security, is
substituted for her predecessor, Michael J. Astrue, pursuant to Federal Rule of
Appellate Procedure 43(c)(2).

-- 1 of 4 --

applications for disability insurance benefits and supplemental security income,
pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416, 423,
1382c.1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and
remand with instructions.
1. As a preliminary matter, we must determine whether Angevine has waived
his arguments regarding the alleged failure of the administrative law judge (“ALJ”)
to consider his mental impairments because these arguments were not raised before
the district court. While issues not raised below are generally deemed waived, we
nevertheless exercise our discretion to reach the merits of Angevine’s claim
because “the issue presented is purely one of law and . . . the pertinent record has
been fully developed.” Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
Moreover, given the Acting Commissioner’s opportunity to respond to the
arguments Angevine now raises, she “will suffer no prejudice as a result of the
failure to raise the issue in the trial court.” Raich v. Gonzales, 500 F.3d 850, 868
(9th Cir. 2007). Finally, in light of the clarity and nature of the legal error alleged,
we find that review of the issue is “necessary to avoid a manifest injustice.”
1 The Appeals Council declined Angevine’s request for review. Thus, the
ALJ’s decision became the final decision of the Acting Commissioner of Social
Security for purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481.
2

-- 2 of 4 --

Greger, 464 F.3d at 973 (quoting Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.
1999)) (internal quotation mark omitted).
2. We conclude that, as a matter of law, the ALJ erred in failing to address
Angevine’s colorable claim of mental impairment. Step two of the five-step
sequential process by which an ALJ determines whether an applicant is disabled
requires the ALJ to evaluate the severity of an applicant’s impairment or
combination of impairments. See 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). In doing so, an ALJ must evaluate an applicant’s mental
impairments via a special psychiatric review technique outlined in 20 C.F.R. §§
404.1520a, 416.920a when the applicant has a “colorable claim of mental
impairment.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 726 (9th Cir.
2011) (quoting Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 2000)) (internal
quotation marks omitted).
The record demonstrates that Angevine possessed a colorable claim of
mental impairment. He received two positive screens for post-traumatic stress
disorder (“PTSD”), was diagnosed with PTSD, was encouraged to attend a PTSD
treatment program, and was referred to a mood disorder group “to work on mild
depression.” He asserted before the ALJ that he was unable to work “because of
depression and [his] alcoholism,” and estimated that he had sought psychiatric
3

-- 3 of 4 --

treatment twice a month on average over the previous year. Despite this record,
the ALJ discussed none of the evidence relating to Angevine’s alleged mental
impairments, and offered none of the findings or conclusions required by the
special psychiatric review technique. See 20 C.F.R. §§ 404.1520a(b)–(e),
416.920a(b)–(e). This error was not harmless. Keyser, 648 F.3d at 726.
We reject the Acting Commissioner’s contention that even if the ALJ erred
in this regard, Angevine has nonetheless failed to establish the existence of any
mental impairments. It is not for us to gauge on appeal the extent and severity of
Angevine’s mental impairments. Rather, that task falls to the ALJ in the first
instance, and must be completed through the application of the special psychiatric
review technique. See id. at 725.
Accordingly, we reverse the judgment of the district court with instructions
to remand to the ALJ for a proper review of Angevine’s mental impairments. We
need not address any other issues raised on appeal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
4

-- 4 of 4 --