7th Circuit affirms remand of veteran’s disability case

An Army National Guard veteran’s disability case is heading back to the Social Security Administration after the 7th Circuit Court of Appeals ruled Friday the veteran was not entitled to disability benefits based solely on the disability rating he received from the Department of Veterans Affairs.

After injuring a tendon in his right shoulder while serving in the Army National Guard, Douglas Bird was operated on in 2006 and subsequently began reporting to Veterans Affairs doctors issues such as hearing loss, migraines, stiffness, pain, weakness and anxiety. Contradictory opinions from VA doctors on Bird’s employability began to emerge, and eventually he was given a 70 percent service-connected disability rating but was paid at the full 100 percent rate because the VA found him unemployable.

Bird applied for disability insurance and told an administrative law judge that his severe back pack and migraines prevent him from working. Further, Bird told the ALJ that he also suffered from tinnitus and posttraumatic stress disorder-related anxiety, which would cause problems in a work environment.

A vocational expert agreed that Bird would be considered unemployable if his migraines incapacitated him at least three times a month, but a state-agency physician who reviewed Bird’s records found that his impairments would not be disabling. After finding that Bird was “not entirely credible” and giving no weight to his VA disability rating, the ALJ denied Bird’s disability request.

On appeal to the U.S. District Court for the Southern District of Indiana, Bird argued that the ALJ had erred in disregarding his VA disability determination and other medical evidence, so Judge William T. Lawrence remanded the case to the Social Security Administration to consider such evidence.  However, that order did not satisfy Bird, who sought an order for immediate benefits based on his VA rating and medical evidence, so he appealed before the 7th Circuit Court of Appeals in Douglas A. Bird v. Nancy A. Berryhill, Acting Commissioner of Social Security, 16-2000.

But Judge Richard Posner, writing for the circuit court panel, noted in a Friday opinion that Bird’s 70 percent disability rating does not establish that he is entitled to SSA benefits. Though the VA’s disability rating may be indistinguishable from an SSA disability determination, there are differences in how the two agencies evaluate disability claims, Posner wrote. Specifically, the judge noted that the VA’s rating process is pro-claimant, while the SSA is neutral.

Further, Posner wrote that the grounds for Bird’s VA disability rating were not available to the ALJ, nor were the results of an X-ray and MRI showing that he suffered from spinal fractures and bulging discs.  Thus, remanding the case to the ALJ for consideration of such evidence was appropriate, Posner wrote.

The judge concluded by noting that as of March 27, a new regulation will provide that SSA will not analyze other agency decisions, such as VA disability ratings, but instead will consider the supporting evidence that led to those decisions.

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