Applying for Social Security Disability with a History of Drug or Alcohol Use

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Social Security Disability cases that involve clients who use illegal drugs or alcohol are some of the most complicated and challenging to prepare.

Until 1996, the Social Security Administration (SSA) approved disability benefits for applicants who met the legal definition of disability because of substance use. The Contract with America Advancement Act eliminated Drug & Alcohol Abuse (DAA) from the Listing of Impairments, ending payments for beneficiaries who had been approved for Social Security Disability Insurance (SSDI).

SSA’s procedure documentation states:

“We do not consider a claimant disabled if drug addiction or alcoholism (DAA) is a contributing factor material to the determination that the claimant is disabled.” (Program Operations Manual System DI 90070.050).

In plain language, if you meet the definition of disability only if SSA takes your drug or alcohol use into account, you cannot be awarded SSDI benefits. Keep that in mind as you read the rest of this post. We’ll keep coming back to it.

Evaluating Drug and Alcohol Abuse

SSA evaluates every disability case — including those where DAA is involved — according to a five-step sequential process. A quick review of that framework:

Step 1 > Is the applicant engaged in substantial gainful activity (SGA)?

Step 2 > Does the applicant have a severe impairment?

Step 3 > Does the severe impairment meet or equal a listing found in SSA’s Listing of Impairments?

Step 4 > Can the applicant perform their past relevant work?

Step 5 > Can the applicant adjust to other work that exists in significant numbers in the national economy?

As your case is going through this review, the analyst isn’t asking, “What if the claimant didn’t use drugs or alcohol?” At this point, your case is being considered as a whole — the question is simply, “Is the claimant disabled?”

If the answer is yes and there is evidence of substance use disorder, your case will be evaluated to determine whether your use of drugs or alcohol rises to the level of Drug and Alcohol Abuse as judged by SSA.

Making the DAA Determination

Drug and alcohol abuse can only be considered in a disability determination if objective medical evidence exists from an acceptable medical source that the claimant has a substance use disorder (SUD).

The fact that you have used or are using alcohol or drugs is not enough evidence to find DAA.

An SSA policy interpretation ruling states:

“Evidence that shows only that the claimant uses drugs or alcohol does not in itself establish the existence of a medically determinable Substance Use Disorder.” (SSR 13-2p: Titles II and XVI: Evaluation of Drug Addiction and Alcoholism (DAA). February 2013.)

Just like any medically determinable impairment, SSA requires objective medical evidence from an acceptable medical source to support a finding of DAA. Typically, SSA is looking for clinical findings reported by a psychiatrist, psychologist or other treating acceptable medical source.

Besides a diagnosis of SUD, relevant medical evidence could include records of outpatient or inpatient treatment for drug or alcohol use, multiple substance use-related admissions to the emergency department, or medication-assisted treatment.

In addition to medical evidence, SSA will be looking for examples of “a maladaptive pattern of substance use and the other requirements for diagnosis of a substance use disorder in the DSM.” (The DSM is the Diagnostic and Statistical Manual of Mental Disorders, which is released by the American Psychiatric Association.)

This might include an arrest or conviction for a substance-related offense, excessive work or school absences, other examples of a decline in work or school performance, or interpersonal problems. This evidence must also come from an acceptable medical source to show that it fits the criteria for a diagnosis of SUD.

If DAA is suspected but the evidence, when taken as a whole, isn’t enough to make a determination, SSA might order a consultative medical examination.

Evaluating Abuse of Prescription Drugs

If you are being treated with prescription opioids for severe pain, you may also struggle with dependency on those drugs. This is especially common when claimants suffer from chronic conditions such as cancer, spinal stenosis, or ankylosing spondylitis, or they have suffered a serious injury.

If you are taking the medication as prescribed — that is, you are in an ongoing provider-patient relationship and you take your medicine at the directed dose and frequency — SSA will consider your dependency on the drugs as a side effect, and your application will not be evaluated for DAA.

If there is evidence that you are not taking the drugs as prescribed — you’ve seen several different providers who have all prescribed narcotics, for example — you likely will be subject to the DAA review.

Is DAA Material to Your Disability?

When SSA determines there is sufficient evidence in your case to demonstrate DAA, your application goes back through the five-step sequential process. This time, the analyst sets aside evidence of DAA while reviewing your case to determine whether DAA is material to your disability determination.

In legalese, when something is “material” it is considered to be a contributing factor. In the context of DAA, when Social Security applies the five-step process a second time, the goal is to determine whether you would still meet SSA’s definition of disability if you were not using alcohol or drugs. The claim analyst takes a new set of questions into consideration:

Does the claimant have DAA?

Remember, if there is no medical evidence of DAA, SSA will not consider substance use in your disability determination. You may be using drugs or alcohol, but it doesn’t rise to SSA’s definition of DAA. No materiality determination is required.

Is the claimant disabled considering all impairments, including DAA?

If not, no DAA determination is required. Your impairment or combination of impairments — including DAA — does not meet SSA’s definition of disability. Your claim will be denied.

Is DAA the only impairment?

If DAA is the only severe impairment you have, then it is material (a contributing factor) to your disability. SSA finds that your functional limitations are a direct result of your DAA. You are not eligible for benefits.

Is the other impairment(s) disabling by itself while the claimant is dependent upon or abusing drugs or alcohol?

  • No means SSA finds that you may be disabled when all the evidence is considered, but if your DAA were removed from the analysis, the remaining impairments would not be severe enough on their own to keep you from working. Your claim will be denied.
  • Yes means that SSA finds you disabled even when DAA is removed from the evaluation. Your other impairments are severe enough on their own to restrict your work activity to the point that you cannot engage in SGA. SSA will continue to Step 5.

Does DAA cause or affect the claimant’s impairment?

  • No is a finding that DAA is neither the cause of your impairment, nor does it make it worse. DAA may be a co-occuring impairment, but it is not material.
  • Yes means you have an impairment that is disabling, and your DAA causes/caused it or makes/made it worse. DAA could be material depending on the answer to Question 6.

Would the other impairment(s) improve to the point of non-disability in the absence of DAA?

  • No means DAA is not material. You have an impairment that was/is caused by or affected by DAA. However, at this point, SSA considers your condition to be irreversible. Or, it could be somewhat reversible, but any improvement would not be enough to allow you to go back to work. You are eligible for benefits.
  • Yes means you have an impairment that is disabling, but if you stopped drinking or using drugs, your condition would improve to the point that you could do past relevant work — maybe not immediately, but within 12 months. Your claim will be denied.

Claimants are often surprised to learn that conditions caused or exacerbated by DAA could be found not material. Here are some examples offered by SSA:

  • Quadriplegia (four-limb paralysis) because of an accident while driving under the influence of alcohol.
  • Listing-level human immunodeficiency virus (HIV) from sharing a needle for intravenous drug use.

In both of these cases, the impairments were the result of substance use. However, these conditions are likely to be irreversible or the condition will not improve enough to allow the claimant to go back to work.

We also see conditions that are the result of long-term drug or alcohol use. SSA uses these examples:

  • Permanent encephalopathy (brain disease that alters the function or structure of the brain)
  • Cirrhosis of the liver
  • Substance-induced persisting dementia

In each case, damage to the organs would be irreversible.

Substance Use Disorders and Mental Health Conditions

If you suffer from substance use disorder and another mental illness, it can be very difficult to separate one from the other in terms of cause and effect.

In these cases, it is important to look at periods of time when you can prove you were not using. If this is hard to identify, we can often look to periods of hospitalization or a substance treatment program. SSA will try to determine whether you experienced symptoms of your mental illness that restricted your function despite evidence that you weren’t using alcohol or drugs.

Providing context to drug or alcohol abuse can also be important. For example, a claimant with listing-level schizophrenia may drink or use alcohol in an effort to minimize auditory hallucinations. Even if the applicant has been advised not to use alcohol or drugs, it may be nearly impossible to predict what would happen if the substance use stopped. In addition, claimants with such severe mental disorders may not have the judgment to be able to abstain from substance use, even if abstinence would improve their mental health.

It almost goes without saying that medical evidence from a psychiatrist is critical in cases such as these. While SSA will weigh the opinion of a psychologist, the agency will give more credence to the psychiatrist’s knowledge of pharmacological effects and drug toxicities given the presence of DAA.

Addressing Substance Use in Your Application

If evidence of substance use exists in your medical records, your claims analyst will find it. When that happens, your credibility could be called into question and your case could be doomed. So while it might be tempting to try to downplay your substance use if you are applying for disability, it’s best to address it openly and honestly from the beginning.

We work with claimants who have a history of substance use to fully document it and provide context in the Medical Summary Report. Remember, Social Security isn’t making an assessment of your character and neither are we. And you are not alone in your struggle.

Contact Joyce & Bary Law today.

If you are unable to work because of illness or injury and you have a history of substance use, consult a disability attorney before you apply for SSDI. Our disability team would be happy to discuss your case and tell you whether we can help. Remember, the consultation doesn’t cost a thing. Fill out the form on our website or call our office to talk about your situation.

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