                                                                             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                            NOT FOR PUBLICATION                               MAR 23 2016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


                                          2
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.




                                          3
