Jul 23, 2017

I'm Expecting To See Lots Of Remands On This Issue

     The Department of Veterans Affairs found a vet disabled. Social Security doesn't think they need to give any explanation why they disagreed and found him not disabled. In fact, to my ears, they sound a bit arrogant about it.  This may sound reasonable to some at Social Security. Those of us who represent claimants think the agency has picked a fight it probably won't win in federal court. If you think it's clear that the agency will win on this issue, I'd suggest you take a step back and try to look at this from the perspective of a federal judge. And saying that federal judges just don't understand Social Security doesn't get you anywhere.
     By the way, yes, I know, this guy probably got some bad advice. Overestimating the strength of one's hand can be a problem for both sides.

19 comments:

Dan Smith said...

IMO it's not exactly easy to explain why your decision (as an ALJ) differs from the reasoning of the VA when the VA barely provides any details on why they're approving. Even a FF decision is practically voluminous compared to those measley two page VA ratings. Or should I just be looking somewhere else for the reasoning? (I don't handle a ton of vet cases)

Jeff Garrison said...

Why on earth would one government agency disagree with another is wrong. They should all agree and have the same rules but i understand how it happens. Medicaid which is now hip without ssi or ssd insurance in indiana says i am but just like him i am not getting ssi

Anonymous said...

The VA uses very liberal standards for a finding of disability. As Dan pointed out, the VA decisions very rarely have a substiated rationale with a cite to actual evidence. The VA standard, by law or otherwise at least in practice from my experience, is generally viewing the record such as it is in "the light most favorable" to the Veteran. SSA has no such standard for Vets or any other claimant.

Don't shoot the messanger, I am just explaining the why as SSA believes it to be. I don't necessarily agree with it.

Anonymous said...

Regardless of whether or not a case gets remanded back to an ALJ, are ALJ's informed when one of their cases is taken to Federal Court?

Anonymous said...

The VA must accept as true any allegations made by a vet that has engaged in combat, regardless of whether the records support the allegations or even contain any evidence at all. To say it's highly deferential is a huge understatement. It's how I've seen multiple Step 1 denials for unemployable vets because they start working after they get their rating without penalty. SSA employs a number of 100% rated vets that work full-time as well.

The reason SSA doesn't and shouldn't give any deference to the VA ratings is the ratings scheme has minimal functional analysis. 50% for OSA because you wear a CPAP. 20% for diabetes because you take oral meds but don't take insulin. various 10-20% ratings because one doctor noted decreased range of motion in your neck/knee/back even though every x-ray and MRI is entirely normal. On the occasions where a C&P exam gives functional limitations, they almost always say, "Veteran says..." rather than any actual opinion.

Anonymous said...

We spent a lot of time looking at this issue and essentially, except for very few situations where we do accept the VA decision, the laws and regs are different enough to make it impossible. It's a shame both use the same words but those words have different legal requirements. It's understandable that people get confused but the issue truly is the two systems are separate, independent and have different legally required criteria about what constitutes a disability. It's the same thinking that the treating physician just saying "you are disabled" has no meaning to SSA without evidence. VA says disabled, I say explain why in enough detail to apply those facts and findings to the SSA requirements.

Anonymous said...

@Dan Smith

Yeah, there is reasoning beyond the 2 pages, and you can usually get those but getting anything beyond the summary from the VA is like pulling teeth. My understanding is that they misplace the records.

When we get the actual reasoning it is quite good. The issue is, the VA does very little in terms of vocational reasoning. It's a very different standard and while the purposes and medical considerations are similar, if there is solid medical evidence, it seems like the VA just assumes vocationally they can't work whereas SSA has significant additional procedures to sort out vocational issues (Grid rules, non-exertional SSRs, etc.).

@11:08

I do recall some recent DC circuit caselaw on that point. I believe taking the Veteran's explanation in the light most favorable is actually part of the regulations, not just in practice.

Anonymous said...

It is in the regulations. It's 38 USC 1154(b).

Jason Quick said...

I doubt there will be many remands because, under 20 CFR 404.1504 no analysis of a VA rating is required, only discussion of the "underlying" evidence, which a simple citation to the exhibits will take care of.

Anonymous said...

Just tell the Vet he cannot work and get SSDI if he is over SGA. You get VA benefits even if you are working. They get really angry about that!

And before you start complaining, I have a DD214 so get off my back.

Anonymous said...

the claimant has the burden of proof (except for jobs at Step 5, I know) for SSA disability, but the VA has the burden to prove the claimant is not disabled in a VA disability determination. And the VA is totally formulaic: you have X impairment at Y level of severity and you get XX% of disability for it. Similarly, the overall rating based on grouping those individual impairments is rigidly prescribed.

At SSA, the claimant has the burden of establishing an impairment, showing it is severe, and supplying evidence to show just how limiting it is. SSA makes no assumption what an impairment is doing, it's up to the claimant to prove it with evidence.

Anonymous said...

If SSA cares so little about 100% VA determinations, why does it expedite disability claims from people who have them?

Lots of data from SSA on DI applications from people with 100% disability ratings and/or IU: https://www.ssa.gov/policy/docs/ssb/v74n3/v74n3p1.html

Jeremy Reppy said...

Public policy -- it looks bad to make vets with VA Disability wait a long time for a SSA decision.

Anonymous said...

VA has a different standard and will pay on percentages. It's actually all laid out, and VA provides medical care. It is possible to get a 70% VA claimant on SS disability. Sometimes, a VA recipient can work in a peculiar situation, but when circumstances change, they can't work. I like working with VA folks, but I don't like to do very many VA claims.

Anonymous said...

This claimant had a later onset favorable decision. Rep failed to tell him he could lose it all on appeal. Case has already been affirmed by appeals council. Rep got greedy and gave bad advice.

Anonymous said...

I learned that one the hard way. I will never do that again unless I'm looking at very good medical records predating the favorable onset. I was luck in that the ALJ let us know that his decision only dealt with SS, not with SSI, so we just lost a few dollars a month.
However, I have seen the DDS just pull an onset date out of a hat without consideration to actual date of disability, application, reality, etc. Those can be corrected.
I just won one with a rather recent onset date, and while I believe she was disabled before that, I'm not doing anything until I see some new medical evidence.

Anonymous said...

Generally speaking, reps are good about explaining the risk-reward of appealing a partially favorable decision by DDS. Sometimes the claimant will want to pursue the earlier period, and I can tell the rep is concerned and advised against it based on their expression or explanation. I always explain to the claimant that I'm not bound by any previous determination, that the whole period is in front of me, and that an adverse decision could create an overpayment. I make sure to go through that because I don't know what the rep has told them.

I've had a particularly egregious case where it was rather obvious the rep was disappointed with their fee since the SSI app was filed in 3/15 with a favorable decision issued in 5/15 by a SDM. It was appealed on the sole basis that the rep wanted to reopen the prior determination based on evidence that came into existence several months after that determination.

Anonymous said...

Above comments appear thoughtful. VA rules are radically different from SSA. VA pays in % of disability similar to workers comp. They are NSC (non service connected) or SC (service connected). NSC claims only pay around $90/mo per 10% of allowance while SC claims average $250/mo per 10% allowance. A vet can have a combined claim with both NSC & SC claims concurrent depending on what evidence can be located. I routinely received evidence from Germany, Guam, etc. VA also allows much more leeway on allegations, eg: VA allows a 10% disability for ED, which SSA doesn't recognize for claim purposes. Vets repeatedly appeal claims to reach the 70% "unemployable" threshold as the final 30% is much easier to achieve. VA sends vets to CE doctors of their own, the exam reports frequently of which are every bit as poor as some of SSA's.

Anonymous said...

The VA uses very different methods to determine disability. Again, this rule change has very little practical effect. Prior to the new rule, all it meant is that we had to spill more ink explaining why the VA opinion was not given great weight. Most writers have autotext that deals with VA opinions. Now, life is a bit easier, because they can just ignore it. Regardless, the ALJ still has to consider the underlying evidence. So, in reality nothing changes. The opinion must be fact based and the analysis has to cover all of the evidence.