In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-2000

DOUGLAS A. BIRD,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL, Acting Commissioner of Social

Security

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:15-cv-01177-WTL-MPB — William T. Lawrence, Judge.

____________________

SUBMITTED FEBRUARY 2, 2017 — DECIDED FEBRUARY 10, 2017

____________________

Before WOOD, Chief Judge, and POSNER and KANNE, Circuit Judges.

POSNER, Circuit Judge. The Social Security Administration 

denied Douglas Bird’s application for disability insurance 

benefits. After he sought judicial review, 42 U.S.C. § 405(g), 

the Commissioner agreed with him that the agency’s ad-
2 No. 16-2000

verse decision should be set aside and moved that the matter 

be remanded for further proceedings before an administrative law judge. But that proposal did not satisfy Bird, who 

wanted the district court to bypass further proceedings before an ALJ and instead simply direct the agency to award 

him benefits. The district court refused, precipitating this 

appeal.

Bird claims that since 2006 he has been unable to engage 

in gainful work because of migraine headaches, posttraumatic stress syndrome, tendonitis, and lower-back pain. In 

2005, while serving in the Army National Guard, he injured 

a tendon in his right shoulder and was operated on in 2006. 

He reported to Veterans Affairs doctors that he suffered 

hearing loss, migraines, and stiffness and pain in his hands, 

back and right shoulder, as well as anxiety, weakness in 

gripping objects, and ringing in his ears. The medical records include contradictory opinions from treating physicians—opinions clearing him to work and opinions pronouncing him unemployable. The Department of Veterans 

Affairs gave Bird a 70% service-connected disability rating

but pays him at the 100% rate because they found him unemployable. But the administrative record does not indicate 

what medical evidence the VA relied on.

At a hearing before an ALJ, Bird discussed the VA’s disability finding and testified that his back pain and migraines 

are severe and prevent him from working. His back pain, he 

said, had worsened after he injured himself cutting up fallen 

trees in his yard in 2012. And he added that about every other week a migraine does not respond to treatment, forcing 

him to lie down for 12 to 24 hours, and that his tinnitus and 

anxiety (related in part to his posttraumatic stress disorder) 
No. 16-2000 3

would cause problems in a work environment. A vocational 

expert acknowledged that Bird is unemployable if severe 

migraines would cause him to be unavailable an average of 

three days each month. On the other hand, a nonexamining 

state-agency physician reviewed Bird’s medical records and 

testified that his impairments are not disabling. The ALJ 

agreed with that assessment, reasoning that Bird was “not 

entirely credible” and assigning no weight at all to his VA 

disability rating. This ruling became the final decision of the 

Commissioner when the Appeals Council denied review. 

See Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).

In the district court Bird argued that the ALJ had erred in 

discrediting his evidence and disregarding the VA’s disability determination. The Commissioner asked for a remand to 

allow the agency to consider Bird’s VA disability after expanding the administrative record to include the medical 

evidence that the VA had relied on. The court granted the 

Commissioner’s motion and rejected Bird’s request to order 

immediate benefits since, the court reasoned, the medical 

evidence was not so one-sided as to compel a conclusion that 

Bird is disabled. See Allord v. Astrue, 631 F.3d 411, 415–16 

(7th Cir. 2011).

In his brief on appeal challenging the district court’s decision to remand his case for further proceedings rather than 

ordering SSA to give him the benefits he is seeking, Bird focuses on alleged errors committed by the ALJ. But the 

Commissioner did not defend the ALJ’s decision, which anyway has been vacated. Bird argues that the VA’s conclusion 

that he is 70% disabled and therefore unemployable conclusively establishes that he is disabled. He also asserts that results from a back x-ray and MRI, which he appended to his 
4 No. 16-2000

appellate brief but were not available to the ALJ, establish 

that he has spinal fractures and bulging discs that exclude 

him from gainful employment. See 20 C.F.R. pt. 404, subpt. 

P, Appendix 1, Listing 1.04 (disorders of the spine).

The VA’s finding that Bird is 70% disabled and unemployable does not establish that he is entitled to SSA benefits. 

See Allord v. Barnhart, 455 F.3d 818, 820 (7th Cir. 2006). The 

VA’s disability percentage is based on the average impairment in earning capacity caused by service-connected disabilities, 38 C.F.R. §§ 4.10, 4.15, but the claimant can be rated 

less than 100% disabled and still be found unemployable

and entitled to full disability compensation, if his disabilities

render him “unable to secure or follow a substantially gainful occupation.” 38 C.F.R. § 4.16. Such a finding when made 

is practically indistinguishable from the SSA’s disability determination, which asks whether a medically determinable 

impairment prevents the claimant from engaging in past relevant work or any substantial gainful work that exists in the 

national economy. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. 

§ 404.1505; Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015). 

But there are differences in how the agencies evaluate 

claims: the VA’s evaluation is pro-claimant rather than neutral: “When after careful consideration of all procurable and 

assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the 

claimant.” 38 C.F.R. § 4.3; Hodge v. West, 155 F.3d 1356, 1362–

63 (Fed. Cir. 1998). That is not SSA’s approach.

In any event the grounds for the VA’s decision finding 

Bird to be 70% disabled and unemployable were not available to the ALJ and neither were the results of Bird’s x-ray 

and MRI. The record even includes evidence conflicting with 
No. 16-2000 5

a finding of disability—one of Bird’s treating physicians 

cleared him to work, and a state-agency consultant opined 

that he is not disabled.

We close by noting for future reference a recent change in 

SSA’s regulation regarding decisions by other governmental 

agencies, such as the VA; see 20 C.F.R. § 404.1504. The current regulation provides that a disability determination by 

another agency does not bind the SSA. The new regulation 

adds that for claims filed on or after March 27, 2017, SSA will 

not try to analyze the other agency’s decision, although it 

will consider the decision’s supporting evidence. Revisions 

to Rules Regarding the Evaluation of Medical Evidence, 82 

Fed. Reg. 5844, 5848–49 (Jan. 18, 2017) (to be codified at 20 

C.F.R. pts. 404 and 416).

Bird requests that the proceedings on remand be expedited; the Commissioner agrees with the request.

AFFIRMED