Douglas Bird v. Nancy A. Berryhill
2017 U.S. App. LEXIS 2444
| 7th Cir. | 2017Background
- Douglas Bird applied for Social Security disability benefits alleging migraines, PTSD/anxiety, tendonitis, and chronic back and shoulder pain dating from 2006; he reported worsening after a 2012 injury.
- VA assigned a 70% service-connected disability rating and pays at the 100% unemployable rate, but the administrative record lacked the VA evidence supporting that finding.
- Medical records contained conflicting opinions: some treating doctors cleared Bird for work; a state-agency nonexamining physician concluded Bird was not disabled.
- At the ALJ hearing Bird testified severe migraines periodically incapacitate him (up to 12–24 hours), and a vocational expert said missing an average of three days per month would preclude Employment.
- The ALJ found Bird not fully credible, gave no weight to the VA disability rating, and denied benefits; the Appeals Council denied review.
- The Commissioner moved to remand to allow the SSA to obtain and consider the VA’s supporting medical evidence; the district court granted remand instead of ordering immediate benefits. Bird appealed the refusal to award benefits outright.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA unemployability finding conclusively establishes SSA disability | Bird: VA 70% rating and unemployability conclusively show SSA should award benefits | Commissioner: VA finding is not binding on SSA and SSA should evaluate supporting evidence on remand | VA finding is not dispositive; does not compel SSA benefits because agencies use different standards and VA determinations were not in the ALJ record |
| Whether remand for further proceedings was inappropriate and immediate award required | Bird: record (including VA rating and later imaging appended on appeal) is one-sided and compels benefits | Commissioner: record lacked the VA medical support and contained conflicting medical opinions; remand appropriate to develop record | Remand for further administrative proceedings was proper; district court did not err in refusing to order immediate benefits |
| Whether ALJ’s adverse credibility and discounting of VA decision required affirmance | Bird: ALJ erred in discrediting him and ignoring VA rating | Commissioner: did not defend the vacated ALJ decision and sought remand to address omissions | Court declined to uphold ALJ (decision vacated) and agreed proper course was remand to develop missing evidence |
| Whether new imaging submitted on appeal mandates reversal and benefits | Bird: x-ray and MRI (filed with brief) show spinal impairments meeting Listing 1.04, requiring benefits | Commissioner: imaging was not part of the administrative record before ALJ; must be considered on remand | New imaging not considered by ALJ; appropriate to remand so SSA can consider it rather than awarding benefits now |
Key Cases Cited
- Varga v. Colvin, 794 F.3d 809 (7th Cir. 2015) (discusses standard for SSA Appeals Council review)
- Allord v. Astrue, 631 F.3d 411 (7th Cir. 2011) (remand appropriate when record is not one-sided in favor of claimant)
- Allord v. Barnhart, 455 F.3d 818 (7th Cir. 2006) (VA disability ratings are not binding on SSA)
- Hall v. Colvin, 778 F.3d 688 (7th Cir. 2015) (comparison of VA and SSA disability determinations)
- Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (VA’s pro-claimant rule resolving reasonable doubt in favor of claimant)