                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 16 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PAUL W. ANGEVINE,                                No. 11-15678

              Plaintiff - Appellant,             D.C. No. 1:09-cv-01496-GSA

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

              Defendant - Appellee.


                   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


        *
             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).
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.

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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
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.




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