I am often asked by my veteran clients whether the Social Security Administration is required to find them disabled after the VA has already rated them with impairments and found them unemployable (Total Disability Individual Employability). The short answer is no they are not required to follow the VA and say that your TDIU rating means you are disabled under the SSDI standard. This strikes most of my veteran clients as bizarre, as both Social Security and the Veterans Administration are both governmental agencies. Unfortunately, 20 CFR 404.1504 and 416.904 provide that:
[a] decision by any nongovernmental agency or any other governmental agency about whether you are disabled or blind is based on its rules and is not our decision about whether you are disabled or blind. We must make a disability or blindness determination based on social security law. Therefore, a determination made by another agency [e.g., Workers' Compensation, the Department of Veterans Affairs, or an insurance company] that you are disabled or blind is not binding on us.
See also Soc. Sec. Rul. 06-3p http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR2006-03-di-01.html.
So, it is clear under the SSA’s regulations that a VA determination is not binding on the administration. Yet, the Administration is not free to ignore these decisions. The Rulings provide:
However, we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies (20 CFR 404.1512(b)(5) and 416.912(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.
Soc. Sec. Rul. 06-3p. Over the years, I have been successful at getting several Unfavorable Decisions reversed because an ALJ failed to explain what weight he accorded to the VA rating or why he rejected.
Additionally, I have found that even if the Judge won’t accept the overall opinion of the VA, the opinions from the VA doctors that found you unemployable may still be useful. These opinions may be considered as acceptable medical sources whose opinion can be accorded weight by the Judge. Therefore, if you have been found unemployable by the VA, you should attempt to obtain copies of your C and P (compensation and pension) exams as these may be more persuasive to the Judge than the actual determination of unemployability.
