How SSA applies the drug addiction and alcoholism rules to the sequential evaluation process, with chart.
By Thomas E. Bush
Excerpted from Social Security Disability Practice
- Issue #1: Is Drug Addiction or Alcoholism Involved in the Claimant’s Case?
- Issue #2: Would the Claimant Be Able to Work If the Claimant Stopped Using Drugs or Alcohol?
- Chart: Is Drug Addiction or Alcoholism a Contributing Factor Material to Determination of Disability?
If a claimant’s drug addiction or alcoholism is a “contributing factor material to the determination of disability,” that claimant will be found ineligible for disability benefits from the Social Security Administration. 42 U.S.C. §423(d)(2)(C) provides:
An individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner’s determination that the individual is disabled.
SSA applies the drug addiction and alcoholism rules to the sequential evaluation process by, in effect, creating an additional step. That is, the five step sequential evaluation process is applied taking into consideration all of a claimant’s limitations, including any that may arise from drug addiction or alcoholism. If the claimant is found not disabled at any point in the five step process, then, of course, that ends the inquiry. But if the claimant is found disabled under the five step process, then the decision maker must move on to the next step, to determine if drug addiction or alcoholism is a contributing factor material to the determination of disability. See POMS §DI 90070.050B, reprinted at §249.2.
At this next step in the evaluation, there are two issues: first, is drug addiction or alcoholism involved in the claimant’s case? To address this issue, SSA relies on the criteria for either of two “substance use disorders” in DSM-IV, “substance dependence” or “substance abuse.” Note that an individual’s own statement that he is a drug addict or alcoholic is not, by itself, sufficient. This impairment, like all impairments, must be established by medical evidence. Nevertheless, because of the broad nature of the criteria, a substance use disorder is relatively easy for SSA to establish whenever an “individual’s maladaptive pattern of substance use leads to clinically significant impairment or distress.” POMS §DI 90070.050C.2, reprinted at §249.2.
The second issue, however, is considerably more difficult to determine: Would the claimant be able to work if the claimant stopped using drugs or alcohol? 20 C.F.R. §404.1535 provides:
(a) General. If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.
(b) Process we will follow when we have medical evidence of your drug addiction or alcoholism.
(1) The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.
(2) In making this determination, we will evaluate which of your current physical and mental limitations, upon which we based our current disability determination, would remain if you stopped using drugs or alcohol and then determine whether any or all of your remaining limitations would be disabling.
(i) If we determine that your remaining limitations would not be disabling, we will find that your drug addiction or alcoholism is a contributing factor material to the determination of disability.
(ii) If we determine that your remaining limitations are disabling, you are disabled independent of your drug addiction or alcoholism and we will find that your drug addiction or alcoholism is not a contributing factor material to the determination of disability.
Note that the cause of the claimant’s other potentially disabling impairment is not relevant. It doesn’t matter if, for example, the other impairment is cirrhosis of the liver brought on by the claimant’s drinking. The only relevant inquiry is whether cirrhosis of the liver would continue to be disabling if the claimant stopped drinking now.
Although nothing in the law or regulations changes the traditional allocation of the burden of proof, which shifts to SSA after a claimant proves he or she is incapable of performing past relevant work, a question has arisen in the courts about who has the burden of proving that a claimant would be incapable of working if he or she stopped using drugs or alcohol. In Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999), the Fifth Circuit Court of Appeals concluded that the claimant has the burden to show that drug addiction or alcoholism is not a contributing factor material to the finding of disability. Thus, the claimant must show that she would be incapable of working if she stopped using drugs or alcohol. This position has been adopted by Mittelstedt v. Apfel, 204 F.3d 847 (8th Cir. 2000); Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000); Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001); and Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007).
In an “Emergency Teletype” from SSA dated August 30, 1996, EM-96200, a copy of which may be found on the Internet at SSA’s PolicyNet (SSA’s program policy website), http://policy.ssa.gov or at www.ssas.com/daa-q&a.htm, about drug abuse and alcoholism, SSA addressed what happens if multiple impairments make it impossible for a state agency doctor to project what limitations would remain after the claimant stopped abusing drugs or alcohol. SSA concluded that it was appropriate to find that drug or alcohol abuse was not material. If the burden were on the claimant, the issue would be resolved the other way. The “Emergency Teletype” included the following questions and answers:
27. Q: Is it appropriate for [a state agency doctor] to conclude that he/she cannot project what limitations, if any, would remain if drug/alcohol use stopped and let the [decision maker] make a determination that [drug abuse or alcoholism] is not material?
A: Yes. There will be cases in which the evidence demonstrates multiple impairments, especially cases involving multiple mental impairments, where [the state agency doctor] cannot project what limitations would remain if the individuals stopped using drugs/alcohol. In such cases, [the state agency doctor] should record his/her findings to that effect. Since a finding that [drug abuse or alcoholism] is material will be made only when the evidence establishes that the individual would not be disabled if he/she stopped using drugs/alcohol, the [decision maker] will find that [drug abuse or alcoholism] is not a contributing factor material to the determination of disability.
29. Q: The most complicated and difficult determinations of materiality will involve individuals with documented substance use disorders and one or more other mental impairments. In many of these instances, it will be very difficult to disentangle the restrictions and limitations imposed by the substance use disorder from those resulting from the other mental impairment(s). Can any examples be provided for how to handle the materiality determination in these situations, or can any guidance be provided for the type of information that should be used in trying to assess the impact of each impairment?
A: We know of no research data upon which to reliably predict the expected improvement in a coexisting mental impairment(s) should drug/alcohol use stop. The most useful evidence that might be obtained in such cases is that relating to a period when the individual was not using drugs/alcohol. Of course, when evaluating this type of evidence consideration must be given to the length of the period of abstinence, how recently it occurred, and whether there may have been any increase in the limitations and restrictions imposed by the other mental impairments since the last period of abstinence. When it is not possible to separate the mental restrictions and limitations imposed by [drug abuse and alcoholism] and the various other mental disorders shown by the evidence, a finding of “not material” would be appropriate. See the response to question 27.
The teletype has been used by federal courts to question findings of materiality made by ALJs in the following cases: Clark v. Apfel, 98 F. Supp. 2d 1182, 1185 (D. Or. 2000); Christidis v. Massanari, 75 Soc. Sec. Rep. Ser. 570, 2001 W.L. 1160846 (N.D.Ill. 2001); and McGoffin v. Barnhart, 288 F.3d 1248, 1253 (10th Cir. 2002).
If drug abuse or alcoholism is found to exist but not to be a contributing factor material to the determination of disability, the claimant will be ordered to have a representative payee if the claimant is also found unable to manage his or her own benefits and referred for treatment. However, under current law there are no sanctions for failure to comply with treatment.
One of the biggest problems in representing an alcoholic or drug addict is in overcoming prejudice. SSA saw fit to remind decision makers in SSR 82-60, “a diagnosis of drug addiction or alcoholism should not have an effect on a disability evaluation that is adverse to the applicant.” Courts have also noted this problem. See, e.g., Nelson v. Bowen, 855 F.2d 503, 505 (7th Cir. 1988). Nevertheless, many ALJs will bend over backwards before they will find an alcoholic or drug addict entitled to disability benefits.
Tell your client to stop drinking or using drugs. Although your client has probably ignored doctors’ advice to stop for years, maybe hearing it from a lawyer will make a difference. After all, the best proof of disability in a case involving drug abuse or alcoholism comes after a claimant has stopped using drugs or alcohol. If, after a significant period of sobriety, a claimant remains incapable of working, the case becomes much easier to prove. Tell your client that lying about stopping probably makes the case more difficult.
§249.1 Chart: Is Drug Addiction or Alcoholism a Contributing Factor Material to the Determination of Disability?
1. Is drug addiction Yes Material
or alcoholism the
2. Is the other No Material
3. Are any of the No Not Material
physical or mental
drug or alcohol
4. If drug or alcohol No Material
use were to stop,
would the remaining
mental and physical
individual has be
Thomas E. Bush has devoted his practice to Social Security disability issues since 1977. He was elected to NOSSCR’s Board of Directors in 1988, and was President of NOSSCR for the 1997-98 term. He is the author of Social Security Disability Practice, from which this article is excerpted.