FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GENE R. MCLEOD, 

Plaintiff-Appellant, No. 09-35190

v. D.C. No.

MICHAEL J. ASTRUE,  9:07-CV-52-JCL

Commissioner of Social Security OPINION Administration,

Defendant-Appellee. 

On Appeal from the United States District Court

for the District of Montana

Jeremiah C. Lynch, Magistrate Judge, Presiding

Argued and Submitted

January 14, 2010—Seattle, Washington

Filed December 16, 2010

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Kleinfeld

20129
COUNSEL

Paul B. Eaglin, Eaglin Law Office, Fairbanks, Alaska, for the

appellant.

Jennifer Randall, Special Assistant United States Attorney,

Social Security Administration, Office of the General Counsel, Denver, Colorado, for the appellee.

OPINION

KLEINFELD, Circuit Judge:

We address harmless error in the context of Social Security

disability.

I. Facts

Gene R. McLeod applied at age 51 for supplemental security income based on disability. The Administrative Law Judge

(ALJ) found that he had three severe impairments—

degenerative changes of the lumbar spine, history of coronary

artery disease, and sleep apnea—but none so severe as to rise

to the level of “listed” impairments. He lacked significant protrusion or herniation of the discs or compression of the nerve

root where there was narrowing at L4-5, and catheterization

had restored him to asymptomatic condition regarding his

heart. The ALJ found that McLeod’s medically determinable

impairments could be expected to produce his symptoms, but

his “statements concerning intensity, duration and limiting

20132 MCLEOD v. ASTRUE
effects of these symptoms are not entirely credible.” One of

McLeod’s treating physicians said that he was “very debilitated” and another said he was “unemployable.” But the ALJ

rejected these opinions insofar as they addressed employability, because they gave a conclusory opinion on employability,

the Commissioner’s bailiwick, and “are not function-byfunction analyses of the claimant’s residual functional capacity.” The ALJ found that McLeod could not perform his past

work as a bartender, breakfast cook, groundskeeper, or golf

pro shop clerk, but had sufficient functional capacity to perform such work as gambling cashier, telephone solicitor, and

order clerk, all sedentary jobs with minimal lifting and bending, allowing for sitting and standing within McLeod’s limitations. The district court denied McLeod’s petition for review.

The medical record, consisting mostly of information from

McLeod’s treating physicians and physicians to whom his

treating physicians referred him for consultation at Department of Veterans Affairs facilities, was mixed as to the severity of McLeod’s condition. A neurosurgeon to whom McLeod

was referred said that McLeod had “no muscle weakness” and

recommended against surgery because of the unlikelihood of

improvement “particularly with unsettled litigation and his

pain behavior on examination.” The VA Neurosurgery Chief

wrote that McLeod’s spinal canal was “open throughout his

lumbosacral region” (which means no compression on

account of narrowing) and that “he has some evidence of

degenerated discs but there is not any evidence of nerve root

compression from these discs.” One treating physician at the

VA said that because McLeod had “back pain with minimal

activity,” and “any work he has done exacerbates the problem,” he was “unemployable.” But another treating VA physician said McLeod should be restricted to “light manual

sedentary” work, rather than no work at all.

McLeod’s appeal focuses on the ALJ’s failure to develop

the record further regarding his veteran’s disability and medical condition. McLeod testified that he received a $296 nonMCLEOD v. ASTRUE 20133
service-connected pension, based on unemployability, from

the VA. When the ALJ asked him if he had a VA disability

rating, he answered, “I have no idea, Your Honor.” The

record does not reveal whether the VA found McLeod partially or entirely disabled. No evidence of his disability rating

was submitted to the Social Security Administration at any

stage of the proceedings, or to the district court. Based on

McLeod’s testimony about his “pension,” there is a fair

chance he has a disability rating, but the record shows neither

that he has one nor what it is.

Though McLeod had only a lay representative before the

VA, he was represented by an attorney in district court and is

represented, by different counsel, here.

II. Analysis

McLeod argues under Tonapetyan v. Halter1 that the ALJ

erred by failing to develop the record adequately. According

to McLeod, the ALJ should have requested more explanation

from two of his treating physicians at the VA, Dr. Dietz and

Dr. Rossetto, about his ability to work. McLeod also argues

that the ALJ should have obtained whatever VA disability rating McLeod might have.

[1] The ALJ had no duty to request more information from

the two physicians. It appears from the record that substantially all of their medical records throughout the time they

treated McLeod were before the ALJ. There was nothing

unclear or ambiguous about what they said. They both

thought McLeod had a bad lower back condition, based on his

symptom reports, their examinations, and objective medical

tests. Dr. Dietz thought McLeod could do sedentary work, and

Dr. Rossetto thought McLeod could not work at all. As for the

ALJ rejecting Dr. Rossetto’s opinion on whether McLeod

could work at any job, he was correct that this determination

1

242 F.3d 1144 (9th Cir. 2001). 

20134 MCLEOD v. ASTRUE
is for the Social Security Administration to make, not a physician. “Although a treating physician’s opinion is generally

afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment

or the ultimate determination of disability.”

2

 McLeod argues

that Dr. Rossetto’s opinion could be read as an evaluation of

his “functional exertional capacity” rather than a conclusion

on his ability to work, but we do not agree. The words are

clear and unambiguous: an “ALJ’s duty to develop the record

further is triggered only when there is ambiguous evidence or

when the record is inadequate to allow for proper evaluation

of the evidence.”

3

[2] A treating physician’s evaluation of a patient’s ability

to work may be useful or suggestive of useful information,

but a treating physician ordinarily does not consult a vocational expert or have the expertise of one. An impairment is

a purely medical condition. A disability is an administrative

determination of how an impairment, in relation to education,

age, technological, economic, and social factors, affects ability to engage in gainful activity. The “relationship between

impairment and disability remains both complex and difficult,

if not impossible, to predict. . . The same level of injury is in

no way predictive of an affected individual’s ability to participate in major life functions (including work) . . . Disability

may be influenced by physical, psychological, and psychosocial factors that can change over time.”

4

 The law reserves the

disability determination to the Commissioner.5 Rejection of

the treating physician’s opinion on ability to perform any

2

Id. at 1148; 20 C.F.R. § 404.1527(e)(1). 

3Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). See also

Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (the ALJ did not

have a duty to recontact doctors before rejecting parts of their opinions).

4American Medical Association, Guides to the Evaluation of Permanent

Impairment, 5-6 (6th ed. 2008). 

5

20 C.F.R. § 404.1527(e)(1). 

MCLEOD v. ASTRUE 20135
remunerative work does not by itself trigger a duty to contact

the physician for more explanation.6

[3] The issue of the VA disability rating is more complex.

The record suggests a likelihood that McLeod has some sort

of VA disability rating, yet does not show what it is. That McLeod failed to submit the rating to the ALJ is not the end of

the matter.

[4] The ALJ has a duty to conduct a full and fair hearing.7

We held in Tonapetyan v. Halter8 that “[a]mbiguous evidence,

or the ALJ’s own finding that the record is inadequate to

allow for proper evaluation of the evidence, triggers the ALJ’s

duty to conduct an appropriate inquiry.”

9

 The ALJ must be

“especially diligent” when the claimant is unrepresented or

has only a lay representative, as McLeod did.10 A specific

finding of ambiguity or inadequacy of the record is not necessary to trigger this duty to inquire, where the record establishes ambiguity or inadequacy.11

[5] The record here was inadequate. McLeod testified that

he was receiving a VA pension based on unemployability, but

that he had no idea whether he had a disability rating. This

testimony suggests a likelihood that he had one. If he did, it

might very well matter.

[6] We held in McCartey v. Massenari12 that “although a

VA rating of disability does not necessarily compel the SSA

to reach an identical result, 20 C.F.R. § 404.1504, the ALJ

6

20 C.F.R. §§ 404.1512(e), 416.912 (e). 

7

Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996) (citing Brown v.

Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). 

8

242 F.3d 1144 (9th Cir. 2001). 

9

Id. at 1150 (citing Smolen, 80 F.3d at 1288) (quotation marks omitted).

10Id. (citing Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)). 

11Id.

12298 F.3d 1072 (9th Cir. 2002). 

20136 MCLEOD v. ASTRUE
must consider the VA’s finding in reaching his decision”

13

and the ALJ “must ordinarily give great weight to a VA determination of disability.”

14 That is not to say that the VA rating

is conclusive. In McCartey, we commented that “because the

VA and SSA criteria for determining disability are not identical,”15 the record may establish adequate reason for giving the

VA rating less weight. In some circumstances, the VA may

assign a partial rather than a total disability rating to a veteran,16

and a partial disability rating might cut against rather than in

favor of an SSA determination that the individual could not

perform remunerative work of any kind.

Even though it is not binding or conclusive, the VA disability rating has to be considered. The ALJ did not mention it in

her decision and did not consider it. No doubt she failed to

consider the VA rating because it was not in the record and

she did not know what disability rating if any the VA had

assigned to McLeod. Nevertheless, she erred by not trying to

get whatever VA disability rating existed.

[7] We must apply the holding in McCartey, that the VA

disability rating must be considered and ordinarily must be

given great weight, together with the holding in Tonapetyan,

that inadequacy of the record to allow for proper evaluation

triggers a duty of inquiry. These two holdings taken together

establish that when the record suggests a likelihood that there

is a VA disability rating, and does not show what it is, the

ALJ has a duty to inquire. McLeod might have had a letter

from the VA telling him what his disability rating was, or pro13Id. at 1076. 

14Id.

15Id.

16See 38 C.F.R. §§ 4.1 (explaining that VA disability percentage ratings

represent the average impairment in earning capacity resulting from diseases and injuries), 4.15 (limiting VA total disability ratings to “any

impairment of mind or body which is sufficient to render it impossible for

the average person to follow a substantially gainful occupation”). 

MCLEOD v. ASTRUE 20137
viding him with the basis on which he got his pension, that

he could have brought in had the ALJ given him a continuance and told him to bring in his letter. Alternatively, the ALJ

could have obtained McLeod’s disability rating herself.17

Then she could have evaluated his disability properly under

Tonapetyan. By failing to obtain and consider McLeod’s VA

disability rating, the ALJ erred, denying him the “full and fair

hearing” to which he was entitled.

That leads us to the next question, what we are to do about

the error. We still do not know what determination the VA

made regarding McLeod’s claimed disability. We therefore do

not know whether the ALJ’s failure to obtain the rating

caused McLeod any harm.

[8] The answer to what we must do about the error is provided by a recent Supreme Court decision, Shinseki v. Sanders.

18

In Sanders, the VA had denied disability benefits to two veterans, Woodrow Sanders and Patricia Simmons, because the

record failed to adequately support their claims. In one

instance, the VA had told the veteran what additional information was needed, but failed to specify what portion of that

evidence the veteran would be responsible for providing. In

the other, the VA failed to tell the veteran what information

she needed to provide and failed to notify her of a relevant

medical exam the VA had scheduled on her behalf. In both

instances, the VA failed to perform its duty to help a veteran

develop his claim.

[9] The Court held that to determine whether the error

caused prejudice the VA was to “apply the same kind of

‘harmless-error’ rule that courts ordinarily apply in civil

1738 C.F.R. § 1.506 (stating that VA records required for official purposes will be furnished to any other agency of the U.S. Government “in

response to an official request, written, or oral”). 

18129 S.Ct. 1696 (2009). 

20138 MCLEOD v. ASTRUE
cases.”19 The Court went further, holding that the burden is on

the party attacking the agency’s determination to show that

prejudice resulted from the error.20 Overruling the Federal

Circuit, the Court held that prejudice cannot be presumed

from any kind of error.21 Where harmfulness of the error is not

apparent from the circumstances, the party seeking reversal

must explain how the error caused harm. The first veteran had

not told the Veterans Court, the Court of Appeals, or the

Supreme Court what specific evidence he would have sought,

had the VA told him he needed it, and the Court denied relief.

The second veteran’s record suggested the error might have

been harmful, so the Court required a remand to the VA, even

though she had not shown what additional evidence she might

have submitted. The distinction the Court drew appears to be

that in the case of the second veteran, some “features of the

record suggest” that the error was prejudicial.22

[10] We conclude that Sanders applies to Social Security

cases as well as VA cases. In both, the agency has a duty to

help the claimant, so the Social Security Administration’s

duty to assist claimants23 does not distinguish the cases. The

Veterans Court has a statute providing for a harmless error rule24

and the Social Security statute does not so provide,25 but this

makes no difference, because the Court held that all the VA

statutory provision did was import the Administrative Procedure Act rule and the general federal rule for civil cases.26 The

19Id. at 1704. 

20Id. at 1705-06. 

21Id. at 1705. 

22Id. at 1708. 

23Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 

2438 U.S.C. § 7261(b)(2). 

25We, however, apply harmless error in the Social Security context.

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).

26Shinseki v. Sanders, 129 S.Ct. 1696, 1704 (2009). The Supreme Court

has stated that it “need not decide whether the APA has general application to social security disability claims, for the social security administrative procedure does not vary from that prescribed by the APA. Indeed, the

latter is modeled upon the Social Security Act.” Richardson v. Perales,

402 U.S. 389, 409 (1971). 

MCLEOD v. ASTRUE 20139
Court cited 28 U.S.C. § 2111, under which the harmless error

rule applies to “any” case. The Court limited a burden on the

party seeking to uphold a decision to show absence of prejudice to appropriate criminal cases.27

But Sanders does not mean that the claimant necessarily

has to show what other evidence could have been obtained.

Despite its generalizations about the burden to show prejudice, the Court directed remand to the VA in one of the two

cases before it, even though that veteran had not shown what

additional evidence she might have to show harm. The Court

held that although some features of the record suggested that

the error was harmless, others suggested the opposite, and

“[g]iven the uncertainties, we believe it is appropriate to

remand this case so that the Veterans Court can decide

whether re-consideration is necessary.”

28

[11] We infer from Sanders that, despite the burden to

show prejudice being on the party claiming error by the

administrative agency, the reviewing court can determine

from the “circumstances of the case”

29 that further administrative review is needed to determine whether there was prejudice from the error. Mere probability is not enough. But

where the circumstances of the case show a substantial likelihood of prejudice, remand is appropriate so that the agency

“can decide whether re-consideration is necessary.”

30 By contrast, where harmlessness is clear and not a “borderline question,”31 remand for reconsideration is not appropriate.

[12] Though the exact distinction between the two veterans

in Sanders is not crystal clear, it is quite clear that no pre27Shinseki v. Sanders, 129 S.Ct. 1696, 1706 (2009). 

28Id. at 1708. 

29Id. at 1706. 

30Id. at 1708. 

31Id.

20140 MCLEOD v. ASTRUE
sumptions operate, and we must exercise judgment in light of

the circumstances of the case. In this case, the circumstances

suggest prejudice at least as strongly as for the veteran whose

case was remanded in Sanders. McLeod’s physicians differ in

their evaluations, and McLeod’s testimony, if true, establishes

that the VA has made some sort of disability determination.

Because we give VA disability determinations great weight,

failure to assist McLeod in developing the record by getting

his disability determination into the record is reasonably

likely to have been prejudicial. The district court reviewing a

Social Security determination “may at any time order additional evidence to be taken before the Commissioner of Social

Security, but only upon a showing that there is new evidence

which is material and that there is good cause for the failure

to incorporate such evidence into the record in a prior proceeding.”32 The ALJ’s failure to help McLeod develop the record

by putting his VA disability determination into the record is

“good cause” under Tonapetyan, and the disability determination is “material” under McCartey, so the district court should

remand for this purpose.

REVERSED.

3242 U.S.C. § 405(g). 

MCLEOD v. ASTRUE 20141