Bird v. Commissioner of Social Security Administration , 699 F.3d 337 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EARL MATTHEW BIRD, 
Plaintiff-Appellant,
v.
 No. 11-1645
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(3:09-cv-02689-CMC)
Argued: September 18, 2012
Decided: November 9, 2012
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Keenan
wrote the opinion, in which Judge King and Judge Duncan
joined.
COUNSEL
ARGUED: Timothy Clardy, THE DENNISON LAW FIRM,
PC, Greenville, South Carolina, for Appellant. Thomas Henry
Kraus, SOCIAL SECURITY ADMINISTRATION, Denver,
2 BIRD v. COMMISSIONER SSA
Colorado, for Appellee. ON BRIEF: Carole M. Dennison,
THE DENNISON LAW FIRM, PC, Greenville, South Caro-
lina, for Appellant. William N. Nettles, United States Attor-
ney, Marshall Prince, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Colum-
bia, South Carolina; John Jay Lee, Regional Chief Counsel,
SOCIAL SECURITY ADMINISTRATION, Denver, Colo-
rado, for Appellee.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, Earl M. Bird challenges the district court’s
judgment upholding the decision of the Social Security
Administration (SSA) denying his application for disability
benefits. The SSA determined that although Bird suffered
from Post Traumatic Stress Disorder (PTSD), this condition
was not disabling before the last date of his insurance cover-
age to qualify for an award of Social Security disability bene-
fits. Bird, however, contends that he was disabled before this
date. He primarily asserts that the Administrative Law Judge
(ALJ) erred in failing to consider medical evidence created
after the last date of his insurance coverage, and in failing to
accord adequate weight to his disability determination made
by the Department of Veterans Affairs (VA). Upon our
review, we hold that the ALJ erred in both these respects and,
therefore, we vacate the district court’s judgment upholding
the SSA disability determination.
I.
Bird served in the United States Marine Corps from June
1967 to June 1970. He allegedly suffers from PTSD as a
result of his combat experiences in Vietnam. After his return
from Vietnam, Bird was employed in various capacities,
BIRD v. COMMISSIONER SSA 3
including as a landscaper, on a commercial fishing boat, and
in construction work. Bird changed jobs somewhat frequently
because he had experienced difficulty interacting with people.
From 1995 until 2001, Bird and his wife owned and oper-
ated a mobile home park in Florida. However, they sold the
business in 2001 on the recommendation of the local sheriff,
after Bird had engaged in repeated disagreements with tenants
requiring intervention by law enforcement agents.
Bird described himself as a person who was "combative,
had a hard time dealing with stress, and had difficulty inter-
acting with people." Bird alleged that his disabling PTSD
began on January 1, 2001, the date he stopped working at the
mobile home park, which was several years before March 31,
2005, the last date he was insured for purposes of qualifying
for Social Security benefits (DLI).
Bird applied for veterans benefits through the VA on June
9, 2006. The VA initially awarded him a 70 percent disability
rating for his PTSD, which was revised on November 14,
2007, to a 100 percent disability rating (the VA rating deci-
sion). The VA rating decision was effective June 9, 2006, the
date Bird applied for VA benefits.
Bird does not have any medical records dating before his
DLI. The first medical evidence in the record details his June
2006 visit to a VA clinic, during which Bird reported that he
had not obtained medical treatment for many years. The
results of a screening test for depression administered at this
first visit were negative.
The VA rating decision summarized psychological exami-
nations performed by the VA in September 2006 and in Sep-
tember 2007. The report from the September 2006
examination, conducted by a licensed clinical psychologist,
documented Bird’s symptoms, including irritability, isolation,
withdrawal from others, difficulty sleeping, frequent night-
4 BIRD v. COMMISSIONER SSA
mares, extreme vigilance, an exaggerated "startle response,"
suicidal ideation, and "flashbacks." Bird also related that he
had not attended a movie or a sporting event since 1970, and
had lost his mobile home business due to his aggression with
tenants. The psychologist who conducted that examination
diagnosed Bird as having PTSD, and concluded that Bird was
"currently experiencing a severe level of impairment in his
social and occupational functioning."
The record from the September 2007 examination, which
was conducted by the same licensed clinical psychologist,
again reported Bird’s PTSD symptoms, including nightmares,
isolation, withdrawal, and "difficulty feeling close to his wife
and other members of his family." In this report, the examin-
ing psychologist noted that Bird’s symptoms had persisted
since his return from Vietnam. Other VA clinic notes from
2007 indicated that Bird "has a long history of anger manage-
ment problems," and recorded Bird’s statement that he "quit
going around people" in 2001.
In July 2007, Bird was evaluated by Dr. Spurgeon Cole, a
licensed clinical psychologist, who issued a report detailing
his findings (the Cole Report). Bird told Dr. Cole about hav-
ing witnessed significant carnage during his service in Viet-
nam. Dr. Cole reported Bird’s description of "flashbacks,"
nightmares, intrusive memories, lack of sleep, significant
withdrawal, and isolation. Dr. Cole opined that Bird was
depressed and anxious, and concluded that his "primary prob-
lem" was PTSD. Dr. Cole further indicated that Bird did not
have any friends, did not interact with his neighbors, never
had any visitors in his home, did not take vacations, and was
"not able to tolerate any social interactions." Dr. Cole con-
cluded that Bird is not "capable of relating to supervisors or
co-workers at any level."
Bird first applied for disability benefits with the SSA on
December 19, 2006. The claim was denied both initially and
upon reconsideration. At Bird’s request, a hearing later was
BIRD v. COMMISSIONER SSA 5
held before an ALJ in April 2009, during which Bird testified
and was represented by counsel.
In a May 2009 decision denying benefits, the ALJ found
that although Bird suffered from PTSD before his DLI, his
impairment was insufficiently severe to qualify him for
receipt of Social Security disability benefits. In reaching this
conclusion, the ALJ relied in part on the lack of medical evi-
dence created before Bird’s DLI, and the fact that the VA rat-
ing decision became effective only in June 2006, 15 months
after Bird’s DLI. The ALJ also assigned little weight to the
Cole Report on the basis that it failed to reflect Bird’s pre-
DLI condition. The ALJ did not make a finding regarding
whether Bird was disabled either when he applied for Social
Security disability benefits or at the time of the hearing.
After Bird’s request for further review was denied by the
Appeals Council of the SSA, Bird filed suit in the district
court in South Carolina. He attached to his district court com-
plaint the examinations conducted by the VA in 2006 and
2007, which had been summarized in the VA rating decision.
The district court adopted the recommendation of the magis-
trate judge and upheld the SSA’s denial of benefits. Bird
timely filed a notice of appeal to this Court.
II.
When examining an SSA disability determination, a
reviewing court is required to uphold the determination when
an ALJ has applied correct legal standards and the ALJ’s fac-
tual findings are supported by substantial evidence. 42 U.S.C.
§ 405(g); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005). To establish eligibility for Social Security disability
benefits, a claimant must show that he became disabled before
his DLI. See 42 U.S.C. §§ 423(a)(1)(A), (c)(1); 20 C.F.R.
§§ 404.101(a), 404.131(a). Bird contests the ALJ’s finding
that he was not disabled between his proffered date of onset
of PTSD, January 1, 2001, and his DLI, March 31, 2005,
6 BIRD v. COMMISSIONER SSA
arguing, among other things, that the ALJ did not give proper
consideration to all the relevant evidence.
Bird first contends that the ALJ erred in failing to give
retrospective consideration to medical evidence created after
his DLI, namely, the evidence summarized in the VA rating
decision and the Cole Report. We agree that retrospective
consideration of this evidence was required.
Medical evaluations made after a claimant’s insured status
has expired are not automatically barred from consideration
and may be relevant to prove a disability arising before the
claimant’s DLI. Wooldridge v. Bowen, 816 F.2d 157, 160 (4th
Cir. 1987). In Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir.
1969), we held that an SSA examiner improperly failed to
give retrospective consideration to evidence created between
six and seven years after the claimant’s DLI, because the evi-
dence could be "reflective of a possible earlier and progres-
sive degeneration." The possibility of such a linkage, and thus
the appropriateness of retrospective consideration of medical
evidence, may be enhanced further by lay observations of a
claimant’s condition during the relevant time period. Id.; see
also Cox v. Heckler, 770 F.2d 411 (4th Cir. 1985) (remanding
for consideration of post-hearing evidence given claimant’s
progressively deteriorating lung condition).
Our more recent decision in Johnson v. Barnhart, 434 F.3d
650 (4th Cir. 2005), is further instructive of the principles we
articulated in Moore. In Johnson, after the SSA administrative
hearing had concluded, the claimant’s treating physician sub-
mitted a new assessment identifying additional impairments
that were not linked in any manner to the claimant’s condition
before her DLI. Id. at 656 & n.8. Because there was no evi-
dence that these impairments existed before the claimant’s
DLI, we held that the evidence was not relevant, and that the
ALJ was not required to give the new assessment retrospec-
tive consideration. Id. at 655-56. Thus, our holding in John-
son reinforces the principle applied in Moore that post-DLI
BIRD v. COMMISSIONER SSA 7
medical evidence generally is admissible in an SSA disability
determination in such instances in which that evidence per-
mits an inference of linkage with the claimant’s pre-DLI con-
dition. See Moore, 418 F.2d at 1226.
In Moore, we recognized that evidence created after a
claimant’s DLI, which permits an inference of linkage
between the claimant’s post-DLI state of health and her pre-
DLI condition, could be the "most cogent proof" of a claim-
ant’s pre-DLI disability. Id. Accordingly, under our decisions
in Moore and Johnson, retrospective consideration of evi-
dence is appropriate when "the record is not so persuasive as
to rule out any linkage" of the final condition of the claimant
with his earlier symptoms. Id.Applying these principles to the present case, we conclude
that the ALJ should have given retrospective consideration to
the Cole Report and to the report summaries underlying the
VA rating decision. As discussed above, the VA rating deci-
sion summarized evidence that Bird suffered from severe
symptoms of PTSD before June 2006, and before his DLI.
Most notably, the September 2007 psychological examination
conducted by the VA indicated that Bird’s symptoms of
PTSD had been ongoing since his return from military service
in Vietnam.1 Although the psychological examinations con-
1
The Commissioner contends that the evidence underlying the VA rat-
ing decision shows that Bird’s condition deteriorated after his DLI. For
example, the Commissioner points to the negative results from a June
2006 screening test for depression, to a March 2007 appointment in which
Bird stated he had experienced symptoms during the past month, to an
April 2007 intake assessment in which Bird reported that his nightmares
had worsened over the past two years, and to a June 2007 evaluation for
PTSD in which a VA psychiatrist classified Bird’s symptoms as moderate.
Bird disputes the Commissioner’s characterization of this evidence and
argues that these examinations do not have bearing on his pre-DLI condi-
tion. Because we conclude that the ALJ committed legal error by failing
to consider properly all the record evidence, an assessment of the weight
of the evidence must be left to the ALJ on remand in the first instance.
8 BIRD v. COMMISSIONER SSA
ducted by the VA did not offer retrospective diagnoses, their
substance related to Bird’s history of impairments.2
Similarly, the Cole Report not only enumerated Bird’s
many current symptoms of PTSD, but also recounted Bird’s
impairments and their impact, which occurred long before his
DLI. For example, in reviewing Bird’s work history, Dr. Cole
explained that Bird "held numerous jobs because of his inabil-
ity to get along with others." Dr. Cole noted that the sale of
the mobile home park in 2001 was due to Bird’s combative-
ness and difficulty with social interaction. Like the evidence
summarized in the VA rating decision, the Cole Report placed
Bird’s symptoms in the context of his work and social histo-
ries, drawing a link between his current condition and his con-
dition predating his DLI.
As we held in Moore, retrospective consideration of medi-
cal evidence is especially appropriate when corroborated by
lay evidence. See Moore, 418 F.2d at 1226. Here, Bird’s testi-
mony at the administrative hearing and a statement submitted
by his wife to the Appeals Council buttress the medical evi-
dence of Bird’s pre-DLI condition.3
In addition to many of the facts related above, Bird testified
that his various PTSD symptoms were difficulties that he had
experienced for "years and years before" March 2005. Also,
2
The Commissioner points to Bird’s failure to obtain psychiatric treat-
ment earlier and to complain sooner about having PTSD symptoms as
undermining his claim of a pre-DLI impairment. These facts and Bird’s
explanations may be considered by the ALJ on remand along with all the
other evidence in the case.
3
The ALJ made an adverse credibility finding against Bird regarding
"the intensity, persistence and limiting effects" of his symptoms "to the
extent they are inconsistent with finding that [he] has no severe impair-
ment . . . ." The ALJ agreed, however, that Bird suffered from PTSD
before his DLI. Because we hold that the ALJ committed an error of law,
we do not address the ALJ’s credibility findings or the likely weight of the
evidence on remand.
BIRD v. COMMISSIONER SSA 9
Bird testified that his only friends are other veterans who par-
ticipate in a weekly veterans meeting. Bird further stated that
he only shops in the middle of the night in order to avoid
other people, and that, for the past 30 years, various individu-
als had recommended that he seek psychiatric treatment. Bird
explained that he was unable to obtain such help because he
did not have insurance and there was a lengthy waiting period
to obtain psychiatric services at the VA.
Bird’s wife corroborated this account in the letter she sub-
mitted to the Appeals Council. She stated that Bird had exhib-
ited PTSD symptoms "for a long time," and that they had
become progressively worse over the years. Two VA counsel-
ors also provided a letter to the Appeals Council, explaining
that Bird had experienced PTSD symptoms "[s]ince he
returned from the combat zone."4 Thus, we conclude that the
evidence in the record provided a sufficient linkage "reflec-
tive of a possible earlier and progressive degeneration,"
requiring that the ALJ give retrospective consideration to the
psychological evidence summarized in the VA rating decision
and the Cole Report. See Moore, 418 F.2d at 1226.
The ALJ’s failure to give retrospective consideration to the
above-stated medical evidence created after Bird’s DLI was
an error of law, which requires reversal of the district court’s
judgment upholding the ALJ’s decision. However, because
other evidentiary challenges that Bird raises in this appeal will
arise again on remand before the ALJ, we also consider those
issues here. See, e.g., Sharpe v. Dir., Office of Workers’
Comp. Programs, 495 F.3d 125, 134 n.16 (4th Cir. 2007)
(providing instructions for ALJ to follow on remand regarding
issues not dispositive on appeal); Gordon v. Schweiker, 725
4
The Appeals Council added the letters from Bird’s wife and the VA
counselors to the administrative record; accordingly, these letters are now
part of the record that we consider on appeal. See Wilkins v. Secretary,
Dep’t of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en
banc).
10 BIRD v. COMMISSIONER SSA
F.2d 231, 236 (4th Cir. 1984) ("Since the case must be recon-
sidered by the Secretary, we do provide some guidance as to
a matter very likely to arise at the hearing which will occur.").
Therefore, we turn now to consider whether the ALJ afforded
insufficient weight to the VA rating decision on the ground
that its effective date was after Bird’s DLI.
We have not previously addressed the precise weight that
the SSA must afford to a VA disability rating. However, in
DeLoatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983),
we held that the disability determination of a state administra-
tive agency is entitled to consideration in an SSA disability
proceeding. SSA directives have explained that the SSA is
required to consider all record evidence relevant to a disabil-
ity determination, including decisions by other agencies. SSR
No. 06-03p, 2006 SSR LEXIS 5, at *17. However, under the
regulations implementing the Social Security Act, although
the SSA will accept another agency’s disability determination
as evidence of a claimant’s condition, that agency’s decision
is not binding on the SSA. 20 C.F.R. §§ 404.1504,
404.1512(b)(5). Accordingly, under the principles governing
SSA disability determinations, another agency’s disability
determination "cannot be ignored and must be considered."
SSR No. 06-03p, 2006 SSR LEXIS 5, at *17.
Our sister circuits have afforded varying degrees of eviden-
tiary significance to a disability determination made by the
VA. See, e.g., McCartey v. Massanari, 298 F.3d 1072, 1076
(9th Cir. 2002) ("great weight"); Kane v. Heckler, 776 F.2d
1130, 1135 (3d Cir. 1985) ("substantial weight"); cf. Cutler v.
Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975) ("some
weight" due to disability determination of a state agency). The
assignment of at least some weight to a VA disability determi-
nation reflects the fact that both the VA and Social Security
programs serve the same governmental purpose of providing
benefits to persons unable to work because of a serious dis-
ability. McCartey, 298 F.3d at 1076. "Both programs evaluate
a claimant’s ability to perform full-time work in the national
BIRD v. COMMISSIONER SSA 11
economy on a sustained and continuing basis; both focus on
analyzing a claimant’s functional limitations; and both require
claimants to present extensive medical documentation in sup-
port of their claims." Id.The VA rating decision reached in Bird’s case resulted
from an evaluation of the same condition and the same under-
lying evidence that was relevant to the decision facing the
SSA. Like the VA, the SSA was required to undertake a com-
prehensive evaluation of Bird’s medical condition. Because
the purpose and evaluation methodology of both programs are
closely related, a disability rating by one of the two agencies
is highly relevant to the disability determination of the other
agency. Thus, we hold that, in making a disability determina-
tion, the SSA must give substantial weight to a VA disability
rating. However, because the SSA employs its own standards
for evaluating a claimant’s alleged disability, and because the
effective date of coverage for a claimant’s disability under the
two programs likely will vary, an ALJ may give less weight
to a VA disability rating when the record before the ALJ
clearly demonstrates that such a deviation is appropriate.
Here, although the ALJ reviewed the VA rating decision,
he found that it was not relevant to an evaluation of Bird’s
pre-DLI condition because the decision was effective 15
months after Bird’s DLI. Discounting the VA rating decision
on this basis was improper, as its effective date merely
reflected the date that Bird applied for VA benefits, which
was a date unrelated to the onset of his PTSD. The effective
date of an award for veterans benefits is limited by statute to
"not [ ] earlier than the date of receipt of application therefor,"
with limited exceptions not applicable here. 38 U.S.C. § 5110.
Reflecting this statutory limitation, Bird’s VA rating decision
stated that "[t]he effective date is the date of claim, which is
the date of establishment of service connection for PTSD."
Accordingly, we hold that the ALJ committed an error of law
by failing to give appropriate weight to the VA rating decision
on the ground that it became effective after Bird’s DLI.
12 BIRD v. COMMISSIONER SSA
The above holdings, that the ALJ erred by failing to give
adequate consideration to the VA rating decision and the
medical evidence created after Bird’s DLI, do not end our
inquiry. We also consider an additional issue raised by Bird
that will arise on remand of this case to the ALJ.
Bird contends that because the record contained some evi-
dence that he suffered from disabling PTSD before his DLI,
but did not unambiguously establish the date of its onset, the
ALJ erred in failing to obtain the assistance of a medical advi-
sor to aid in determining the date of onset. In support of his
argument, Bird relies on Social Security Ruling No. 83-20
(SSR No. 83-20), and on our decision in Bailey v. Chater, 68
F.3d 75 (4th Cir. 1995).
We disagree with Bird’s analysis, because it presupposes
that the evidence established that his PTSD was disabling.
Such a conclusion, however, is premature before the ALJ has
applied the law properly to the evidence that should have been
considered in this case.
Both SSR No. 83-20 and our decision in Bailey discuss the
requirement that an ALJ consult a medical advisor after the
claimant has proved that his condition is disabling, but when
the date of its onset remains ambiguous. SSR No. 83-20 pro-
vides, in relevant part:
In addition to determining that an individual is dis-
abled, the decisionmaker must also establish the
onset date of disability. In many claims, the onset
date is critical; it may affect the period for which the
individual can be paid and may even be determina-
tive of whether the individual is entitled to or eligi-
ble for any benefits.
***
BIRD v. COMMISSIONER SSA 13
The onset date of disability is the first day an indi-
vidual is disabled as defined in the Act and the regu-
lations.
***
In some cases, it may be possible, based on the med-
ical evidence to reasonably infer that the onset of a
disabling impairment(s) occurred some time prior to
the date of the first recorded medical examination,
e.g., the date the claimant stopped working. How
long the disease may be determined to have existed
at a disabling level of severity depends on an
informed judgment of the facts in the particular case.
This judgment, however, must have a legitimate
medical basis. At the hearing, the administrative law
judge (ALJ) should call on the services of a medical
advisor when onset must be inferred. . . .
SSR No. 83-20, 1983 SSR LEXIS 25, at *1-8 (emphasis
added).
In Bailey, a case in which the ALJ found that the claimant
suffered from a disabling condition but had failed to consult
a medical advisor to resolve an ambiguity regarding the date
of onset, we explained that "[i]n the absence of clear evidence
documenting the progression of [the claimant’s] condition, the
ALJ did not have the discretion to forgo consultation with a
medical advisor. The requirement that, in all but the most
plain cases, a medical advisor be consulted prior to inferring
an onset date is merely a variation on the most pervasive
theme in administrative law — that substantial evidence sup-
port an agency’s decision." Id. at 79-80.
As the Seventh Circuit explained in Eichstadt v. Astrue,
534 F.3d 663, 666 (7th Cir. 2008), "SSR 83-20 addresses situ-
ations in which an ALJ finds that a person is disabled as of
the date she applied for disability insurance benefits, but it is
14 BIRD v. COMMISSIONER SSA
still necessary to ascertain whether the disability arose prior
to an even earlier date—normally, when the claimant was last
insured." See also Key v. Callahan, 109 F.3d 270, 273-74 (6th
Cir. 1997) (holding that no medical advisor was necessary
when the evidence did not indicate that the claimant was dis-
abled before his DLI). Further, the Tenth Circuit, in Blea v.
Barnhart, 466 F.3d 903, 913 (10th Cir. 2006), cautioned that
when a claimant has established a current disability, "[a]n
ALJ may not make negative inferences [concerning the date
of onset] from an ambiguous record; rather [the ALJ] must
call a medical advisor pursuant to SSR 83-20."
SSR No. 83-20 provides that the claimant’s allegations, his
work history, and the medical evidence are all relevant factors
in determining the date of onset. In the present case, the VA
rating decision, its summary of the underlying evidence, and
the Cole Report all addressed these factors.
Here, the ALJ found that Bird did not prove that he had a
disabling impairment before his DLI, but the ALJ did not
make a finding regarding whether Bird ever was disabled
after his DLI. And, as discussed above, the ALJ’s finding that
Bird had not established a disabling condition before his DLI
was a conclusion reached after the ALJ’s commission of two
errors of law in evaluating the evidence. Thus, on remand, the
ALJ initially will be required to review all the evidence in the
record to determine whether Bird was disabled at any time. If
the ALJ determines that Bird has established a disability
resulting from his PTSD, but that the medical evidence of the
date of onset of that disability is ambiguous such that a retro-
spective inference to the period before Bird’s DLI would be
necessary, the ALJ will be required to obtain the assistance of
a medical advisor in order to render an informed determina-
tion regarding the date of onset.5 See Blea, 466 F.3d at 911.
5
Based on Bird’s condition, the medical advisor requirement would be
satisfied by consultation with a licensed clinical psychologist.
BIRD v. COMMISSIONER SSA 15
III.
In sum, we hold that a VA disability determination must be
accorded substantial weight in Social Security disability pro-
ceedings. We reaffirm our reasoning in Moore and hold that
an ALJ must give retrospective consideration to medical evi-
dence created after a claimant’s last insured date when such
evidence may be "reflective of a possible earlier and progres-
sive degeneration." Moore, 418 F.2d at 1226. After consider-
ing all relevant evidence, and upon determining that the
claimant was disabled at any time, an ALJ must consult with
a medical advisor if the date of onset of the disability is ambigu-
ous.6
We note that, because our decision rests only on a finding
of legal error, we offer no opinion regarding the weight of the
evidence to be considered on remand or whether a denial or
grant of benefits under the correct legal standards would be
supported by substantial evidence. Accordingly, because the
ALJ made two errors of law in conducting his analysis of the
evidence concerning the issue whether Bird was disabled
before his DLI, we vacate the district court’s judgment and
remand the case to the district court for further remand to the
ALJ for proceedings consistent with the principles of law
expressed in this opinion.
VACATED AND REMANDED
6
Bird also argues that the district court should have remanded this mat-
ter to the ALJ for consideration of new evidence, namely, the 2006 and
2007 VA examinations attached to his district court complaint. Because
we vacate the ALJ’s denial of benefits on other grounds, we need not dis-
cuss in detail this secondary argument, which we conclude is without
merit based on Bird’s failure to establish good cause for not introducing
that evidence at the hearing in his case. See 42 U.S.C. § 405(g) (remand
for consideration of new evidence is appropriate "only upon a showing
that there is new evidence which is material and that there is good cause
for the failure to incorporate such evidence into the record in a prior pro-
ceeding").