                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 19 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



WALTER L. BREWER,                                No. 08-16171

             Plaintiff - Appellant,              D.C. No. 2:06-CV-01896-EFB

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

             Defendant - Appellee.



                   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



        *
             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).
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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