The word disability doesn’t have the same meaning in all contexts. If you have a disability insurance policy, you could qualify for benefits if you have a covered condition even if you could still work. If you are a veteran, you might qualify for disability if you have specific conditions. Social Security disability, however, requires a determination that you are “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” See 42 U.S. Code § 1382c(a)(3)(A).
In Green v. Commissioner (10th Cir. 2018), an Army veteran with a 100% VA disability rating applied for Social Security Disability. His claim was denied and the ALJ upheld that finding despite finding that Green had “degenerative disc disease of the cervical and lumbar spines; knee and hip impairments; status post abdominal gunshot wound; major depressive disorder; and post-traumatic stress disorder.” The ALJ nonetheless found that Green could perform medium work lifting no more than 50 pounds at a time and could perform his previous work as a spot welder and a feed loader.
VA Disability Test versus Social Security Disability Test
The ALJ reasoned that the VA test for disability was different from Social Security’s test for disability. “The disability determination processes utilized by the Department of Veterans Affairs and the Social Security Administration are fundamentally different. [The] Department of Veterans Affairs does not make a function-by-function assessment of an individual’s capabilities (i.e., determine the claimant’s residual functional capacity) or determine whether the claimant is able to perform either his past relevant work or other work that exists in significant numbers in the national economy as is required by the [Social Security] Regulations. Thus, a disability rating by the Department of Veterans Affairs is of little probative value in these proceedings.”
Green appealed citing the ALJ’s failure to consider his VA disability determination, rejection of his medical examiner’s opinion and failure to properly assess Green’s credibility. The Tenth Circuit reversed. First, it found that the Commissioner of Social Security is not bound by the VA’s conclusion. Nonetheless, the ALJ considering Green’s case was required to give the VA’s determination, and the evidence underlying it, “more than a cursory treatment and a perfunctory dismissal.” The medical record from the VA was more than 1,700 pages and the ALJ spent less than a page discussing it. While an “ALJ is not required to discuss every piece of evidence, he must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Citing Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (internal quotation marks omitted). Because the ALJ failed to address his reasons for rejecting the VA evidence, Green was able to argue that the VA evidene should have changed the result. The VA record included numerous examples where, on specific dates, Green was unable to work due to PTSD symptoms. None of these were addressed by the ALJ. For that reason, the decision below was reversed and remanded for further proceedings.
Since the case was reversed based on failure to consider the VA record, the Tenth Circuit also addressed Green’s other arguments. The medical examiner concluded his report by stating “This gentleman is significantly impaired from activities of daily living” The ALJ discounted the physician’s report, finding that his conclusion was not supported by substanial evidence. The Tenth Circuit said that in light of the remand we have ordered for reconsideration of the medical evidence, on remand the ALJ “may need to reevaluate his reasoning.” The Tenth Circuit also found that on remand the ALJ should identify which of Green’s statements he found not credible.
