Walter L. Brewer v. MICHAEL J. ASTRUE, Commissioner of Social Security

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER L. BREWER,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
No. 08-16171
D.C. No. 2:06-CV-01896-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Submitted October 4, 2010**
San Francisco, California
Before: BEEZER, KLEINFELD, and GRABER, Circuit Judges.
The administrative law judge (ALJ) failed to give “great weight” to a
determination of disability by the Department of Veterans Affairs (VA). McCartey
FILED
OCT 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). An ALJ may reject the VA’s
disability determination by providing a persuasive, valid reason such as having
additional evidence that the VA did not have when making its decision. See id.;
Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694–95 (9th Cir. 2009).
That standard was not met here.
The VA decided that Brewer is disabled and awarded him benefits. The
Appeals Council remanded so that the ALJ could account for the VA’s decision
and determine the basis of that decision. Nevertheless, the ALJ gave little to no
weight to the VA’s finding and did not determine its underlying basis. This was
not in keeping with the Appeals Council’s instructions or our case law indicating
that if the basis for the VA’s finding of disability is unclear, the ALJ’s duty to
inquire and further develop the record would be triggered. See Tonapetyan v.
Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“Ambiguous evidence . . . triggers the
ALJ’s duty to ‘conduct an appropriate inquiry.’” (quoting Smolen v. Chater, 80
F.3d 1273, 1288 (9th Cir. 1996))).
REVERSED and REMANDED for further consideration and development
of the record in light of the VA’s disability determination.

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