Alexy v. Barnhart

58 F. App'x 357

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 2003
• Docket: No. 01-35622; D.C. No. CV-00-05068-RJB
• Status: Published

Opinion

MEMORANDUM

*

Craig Alexy appeals the district court’s judgment affirming the denial of social security and disability insurance benefits. We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand for further proceedings.

During the proceedings before the Administrative Law judge (ALJ), Alexy testified that the Veteran’s Administration (VA) Hospital had found him to be disabled. But the ALJ did not request the VA’s medical reports for incorporation into the record. In Social Security cases, the ALJ must fully and fairly develop the record, Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996), and incorporate any reports from a VA hospital finding the claimant to be disabled. The VA’s finding of disability must be considered and given great weight. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.2002).

For the reasons stated in McCartey, the ALJ had the burden of obtaining the VA records once Alexy raised the issue by testimony. However, McCartey was decided after Alexy’s hearing, and the ALJ did not here request the VA records. Accordingly, we vacate the district court’s judgment and remand this case for a new hearing with instructions to obtain the VA records, as is required by McCartey, which must be considered at the new hearing.

Because review of the VA records may affect the ALJ’s consideration of other issues raised by Alexy, we decline to reach those issues.

VACATED AND REMANDED WITH INSTRUCTIONS

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.