At O'Malley Tunstall the attorneys and staff are committed to helping get America’s Veterans and wounded warriors the disability benefits they deserve. To that end, we are happy to report about a new case recently handed down by the United States Fourth Circuit Court of Appeals, whose jurisdiction covers North Carolina. Bird v Astrue discussion In Bird v. Commissioner of Social Sec. Admin., the Fourth Circuit held that VA disability determinations “must be accorded substantial weight in Social Security disability proceedings.” 699 F.3d 337, 345 (4th Cir. 2012). The Fourth Circuit had never previously ruled on this issue. In explaining its reasoning, the court cited to SSR 06-3p which states that the Social Security Administration must consider and cannot ignore VA disability decisions. The Court also favorably cited the Ninth Circuit case of McCartey v. Massanari, which explained that both the SSA and VA disability determinations focus on analyzing a claimant’s functional limitations to determine whether they have the capacity to work. 298 F.3d 1072, 1076 (9th Cir. 2002). The Fourth Circuit reasoned that, since the SSA cannot ignore VA decisions, and VA decisions look at the same factors and evidence, it makes sense to give the VA decision substantial weight. See generally, Bird, 669 F.3d at 343 – 344. The practical effect of this ruling is that if a Veteran is given a 100% disabled rating by the VA, the Social Security Administration will likely also find that Veteran disabled and grant them benefits. This is great news for our Veteran’s because it is likely to make the process simpler and quicker. The second major ruling in the Bird case is applicable to eligibility in all disability cases. The Court held that “an ALJ must give retrospective consideration to medical evidence created after a claimant’s last insured date when such evidence may be ‘reflective of a possible earlier progressive degeneration.'” Bird, 669 F.3d at 345 (quoting Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)). This reaffirms the old commonsense rule that a disability judge has to look at medical evidence created after your date last insured, because it might be good evidence of how your condition affected your ability to work prior to your date last insured. This is a technical ruling on eligibility matters, but could be very important for you if you became disabled before you started to go to the doctor frequently. If you or your loved one is a Veteran considering an application for Social Security Disability, please feel free to call O'Malley Tunstall at any time. We love to help Veterans, and one of our experienced disability lawyers, Susan O’Malley, Joseph Tunstall, or Amos Waranch, would be happy to talk to you about your case.
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