On February 20, 2013, the Social Security Administration gave notice of a new rule on how a claimant’s use of drugs and alcohol affects their disability claim.  Generally, use of drugs and alcohol will strongly undermine a clam for disability.  However, the issue gets complicated when people self medicate, and when people have conditions that would be disabling regardless of whether there was any drug or alcohol usage.

The new regulation ( SSR 13-2p ) addresses these issues stating clearly that the Social Security Administration will still examine whether drug addiction or alcoholism is a contributing factor material to the determination of disability, and whether a claimant would still be disabled if he or she stopped using drugs or alcohol.  These issues are often summarized as whether the drugs and alcohol are “material” to the disability claim.

From a technical point of view, which lawyers must adhere to, the new regulation references C.F.R. 404.1535 and 20 C.F.R. 416.935 which requires the adjudicator to apply the sequential process twice in order to delineate the effects of drugs or alcohol from other medically determinable impairments. During the first part of the process, the adjudicator will evaluate all the claimant’s impairments, including drugs and alcohol (DAA).  Then, during the second process, the adjudicator must evaluate whether a finding of disability would remain if the claimant stopped DAA. If the answer is “no”, then the DAA is found to be material to a determination of disability and the claimant will be denied benefits. To determine materiality, SSR 13-2p outlines a DAA evaluation process through a series of six steps that must be applied throughout the sequential processes. The six steps include and may be considered throughout the evaluation in any order:

1. Does the claimant have DAA;

2. Is the claimant disabled considering all impairments including the DAA;

3. Is DAA the only impairment;

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

5. Does the DAA cause or affect the claimant’s medically determinable impairments; and

6. Would the other impairments improve to the point of non-disability in the absence of DAA.

A significant focus on this new regulation is that it requires a higher degree of medical information to determine if the DAA is a material factor to disability. Specifically, SSA will only make a DAA materiality determination when an acceptable medical source finds that the claimant suffers from a Substance Use Disorder. A Substance Use Disorder is diagnosed in part by the presence of maladaptive use of alcohol, illegal drugs, prescription medication, and toxic substances (S.S.A Feb. 20, 2013). But SSR 13-2p now specifically excludes from Substance Use Disorders a claimant’s addiction to prescription medications taken as prescribed, and the claimant’s history of or current occasional maladaptive drug or alcohol use.  Additionally, the new regulation provides for a new aspect of the materiality determination in Step 6 above. SSA can deny a claim if it can be shown that the claimant’s impairments may improve to the point of non-disability in the absence of DAA.

It should also be noted that periods of no drug/alcohol use are looked at by the Social Security Administration, including whether disability symptoms continue or stop during this period of abstinence.   Acceptable medical sources are not necessary to make a determination that a claimant’s work-related functioning would improve in the absence of DAA and opinions of family members and “other” medical sources may be considered.

The SSA gave the following as examples of impairments that are likely to improve in the absence of DAA: alcoholic hepatitis, fatty liver, and alcoholic cardiomyopathy. Further, SSA states in SSR 13-2p that it does not know of any research data that it can use to predict reliably that any given claimant’s cooccurring mental disorder would improve, if the claimant were to stop using drugs or alcohol (S.S.A Feb. 20, 2013).

Our law firm recognizes the difficulties in having a disability and then having an accusation that the disability was caused by the alcohol or drugs.  We also must recognize SSA looks unfavorably towards drug or excessive alcohol usage. These situations are often complicated and we address them on an individual basis with the intent of proving that the underlying disability is the true cause for not being able to work.

For more information, see Social Security Ruling, SSR 13-2p; Titles II and XVI: Evaluating Cases involving Drug Addiction and Alcoholism (DAA) (S.S.A Feb. 20, 2013)(effective March 22, 2013; rescinds and replaces SSR 82-60) or call our offices and speak with an attorney.