Federal Court Addresses Impact of VA Disability Rating on Social Security Disability Claim

Bird v. Berryhill (2017)

This article discusses a Social Security disability claim by an individual with a 70% service-connected disability rating from the Department of Veterans Affairs. I'll explain the background of the case, why it was denied after an administrative hearing, and the federal court's 2017 decision on appeal.

Facts of the Social Security Disability Claim

The disability claimant, Douglas Bird, was serving in the National Guard in 2005 when he suffered a shoulder injury that required surgery. In addition to shoulder pain, he later complained to his doctors about hearing loss, ringing in the ears, migraines, anxiety, and pain and stiffness in his hands and back.

The Department of Veterans Affairs (VA) gave the claimant a 70% service-connected disability rating, but paid him disability compensation at a 100% rate because they determined he was not employable. Unfortunately for the claimant, the medical records on which the VA rating was based were not provided to the Social Security Administration in advance of his disability hearing. After an appeal hearing before an administrative law judge (ALJ), Bird's Social Security claim was denied.

The Federal Judge's Decision

Bird appealed the denial, arguing that the ALJ improperly disregarded the VA's disability rating. On appeal in district court, Social Security took the rather unusual step of offering to remand the case for another administrative hearing. This would allow the claimant to supplement the record with the medical evidence on which the VA finding was based. (It was not clear why this evidence was absent from the record up to this point.)

But the claimant wanted the district court to award benefits itself, not to endure a perhaps lengthy wait for another ALJ hearing. The district court rejected the claimant's request, writing that the medical evidence was "not so one-sided as to compel a conclusion [by the district court] that Bird is disabled." In fact, two medical providers, a state agency consultant (who makes determinations for Social Security) and Bird's own doctor, had previously given the opinion that he could work.

On appeal to the Seventh Circuit, Bird argued that the 70% disability rating and finding of "unemployability" by the VA establishes that he is entitled to Social Security disability benefits. While acknowledging that the VA's "unemployability" determination and SSA's disability determination bear striking similarities, the Seventh Circuit ultimately rejected Bird's argument. Judge Posner wrote:

But there are differences in how the agencies evaluate claims: the VA’s evaluation is pro-claimant rather than neutral: "When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant." That is not SSA’s approach. [citations omitted]

Judge Posner felt that another hearing was appropriate so that the ALJ could consider the grounds for the VA's findings rather than simply looking at the rating itself. As a result, the Seventh Circuit remanded the case for an expedited ALJ hearing.

Lessons from the Decision

Many disability claimants are dismayed to hear that Social Security does not automatically follow the disability determinations of other government agencies, whether the VA or a Medicaid disability adjudicator at the state level. Unfortunately, a disability rating from the VA is not enough to prove to Social Security that you cannot work. The fact is that the VA and Social Security have somewhat different processes for determining disability, and sometimes this leads to different results.

The important thing for disability claimants to remember is that they should make sure Social Security has all the medical evidence that was available to the other government agency, in this case, the VA. An ALJ will not simply take the VA's determination of unemployability at face value.

Read the full text of this case, Bird v. Berryhill, -- F.3d --, No. 16-2000 (7th Cir. Feb. 10, 2017).

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