Monday, May 4, 2015

The Importance of VA Ratings in SSD Cases

Veteran's Administration rating exam reports and disability ratings can be extremely persuasive in a Social Security Disability hearing.  However, strictly speaking, these determinations are not binding on the SSA.  Pursuant to the regulations, the Commissioner of Social Security must make its own independent finding of disability.  (20 C.F.R. §  404.1504) and (SSR 06-3p)  
Nonetheless, regulations also provide that decisions pertaining to disability by another agency, such as the VA, are considered to be "evidence" in Social Security Disability cases.  More importantly, SSR-06-3p states that Social Security judges must consider the ratings made by the VA and explain the consideration given to the VA determination in the notice of decision.  This means that in all cases where a claimant has received a rating from the VA, the ALJ must make specific findings in the the decision.  If you have received a VA rating and the Social Security Judge has failed to mention it, you probably have grounds to reverse the judges determination.  In addition, the judge is required to explain what weight if any is given to the VA's determination.
Determinations by the VA are particularly persuasive when the veteran has received an "unemployability rating".  This rating is received by the veteran when the VA determines that he or she is  unable to secure or follow a substantial gainful occupation as a result of service connected disabilities.  This standard is obviously very similar to the standard used by Social Security in determining whether a claimant is disabled.  
Due to the similarity between the Social Security rule and the VA rule, four Circuit Court of Appeals have determined that VA disability ratings are entitled to "great weight".  VA disability determinations are entitled to great weight in the 9th, 5th, 11th, and 4th circuit court of appeals.  Moreover, the 3rd Circuit Court of Appeals has stated that VA disability ratings are entitled to "substantial weight".     
The Second Circuit Court's ruling with regarding this issue has not been as categorical as the rulings from the five Circuit Courts mentioned above.  In Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980), the Second Circuit observed “[b]y in effect ignoring the VA’s determination of disability, the ALJ disregarded our suggestion in Cutler v. Weinberger, supra, 516 F.2d at 1286, that ‘(w)hile the determination of another governmental agency that a social security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to some weight and should be considered.’” Id. at 896-97, citing Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975).