The Possible Effect of Drug or Alcohol Abuse on a Disability Claim

Whenever a claim for Social Security Benefits under Title II or Title XVI is being evaluated, the Administrative Law Judge must be aware of possible “DAA” materiality on the claim. DAA stands for drug and alcohol abuse. Prior to 1996, a claimant could receive benefits based upon “DAA” (Drug Addiction or Alcoholism) with the conditions that benefits would be paid to a “representative payee” who would manage the funds, that the claimant enter a mandatory treatment program, and that their benefits would be limited to threes.


In 1996, however, Congress enacted the “Contract with America Advancement Act of 1996”, Public Law 104-121. Section 105 provides that "an individual shall not be considered to be disabled ... if alcoholism or drug addiction would ... be a contributing factor material to the Commissioner's determination that the individual is disabled."


The Social Security Administration has acknowledged that there are no exact criteria for when drug addiction and alcoholism are present. However, some courts have concluded that an actual diagnosis of a substance abuse disorder is not required, only that there is some evidence to support a finding of DAA.


The key factor Judges look to in determining whether drug addiction or alcoholism is a contributing factor material to the disability is whether the claimant would still be disabled if he or she stopped using drugs or alcohol. In making that determination, the Judge evaluates whether the claimant’s current physical or mental impairments would remain if the claimant stopped using drugs or alcohol and whether any of the remaining conditions would be disabling. If the impairments would still remain and would be disabling, then the DAA is not a contributing factor.


In order to be a contributing factor to the disability, however, the claimant must be currently abusing drugs or alcohol. The law does not apply to claimants who have stopped using drugs or alcohol. The Social Security Administration considers a one-month period of abstinence to be a sufficient period of time to observe whether the absence of drugs or alcohol has affected the claimant’s condition.


Credibility is always of major importance in disability cases, but it is especially important when a claimant states that the disability is independent of the drug or alcohol abuse. Judges often give great weight to the opinions of the claimant’s treating physicians in their determinations. Thus it is very important for claimants to be truthful about their drug or alcohol abuse. If a doctor feels that their patient is not being truthful, that opinion may appear in their treatment notes. And Judges will review those notes before the hearing. If a Judge suspects that the claimant has not been truthful in the past, the chances of being awarded disability benefits will be severely damaged.

VISIT SOCIAL SECURITY LAW TODAY

What are Representative Payees?

A relatively common scenario encountered by claimants is the situation where the claim has been awarded, but the claimant has been informed that he will not receive the funds directly. Instead, the funds will be distributed to a third-party “representative payee.” A representative payee is a person, agency, organization or institution that the Social Security Administration selects to manage a claimant’s funds when the claimant is determined to be incapable of doing so.


The first question the claimant will ask is, “why am I not receiving my funds directly?” The short answer is that they fall within one of the three categories of claimants the Social Security Administration has determined must have a representative payee. The first two categories are pretty straightforward and include most children under the age of 18 and legally incompetent adults.


The third and most common category though is anyone that Social Security determines to be incapable of managing or directing the management of his or her funds. Since a finding of disability is obviously a prerequisite to obtaining benefits under Social Security’s Disability and Supplemental Security Income programs, it stands to reason that a representative payee could be found necessary in all cases. Fortunately, the rules are not quite so liberal and the necessary finding that must be made before a payee is established is not an arbitrary process. There are strict standards in place requiring the Social Security Administration to evaluate medical or other types of evidence concerning the claimant’s ability to manage his benefits.


The next question becomes, “who may serve as a representative payee.” The answer is almost anyone. For example, a representative payee may be someone concerned about the claimant’s welfare (e.g. parent, spouse, guardian, friend), and an institution/entity, such as a nursing hone, nonprofit agency, or administrators at a homeless shelter. One of the few limitations is that the payee cannot be a convicted felon.


The payee does not have unlimited discretion in spending the funds. The payee must ascertain the needs of the claimant and use the benefits in his best interests. Funds must first be used for basic needs such as food, clothing and housing. The payee must also account for how the money is used each year.


Finally, either the claimant or the payee may request that the relationship be changed or terminated at any time. Upon receipt of the request, the Social Security Administration will investigate the situation and determine whether the request is appropriate.

VISIT SOCIAL SECURITY LAW TODAY

Residual Functional Capacity (RFC)

When a disability claimant’s impairments do not meet or equal a listing at step 3 of the sequential evaluation process, the Social Security Administration (SSA) is required to evaluate his or her residual functional capacity. SSA defines RFC as “what you can still do despite your limitations.” A Social Security Ruling (SSR) defines it as an assessment of an individual’s ability to do sustained work related physical and mental activities in a work setting eight hours per day, five days a week, or an equivalent schedule.

A claimant’s impairments and related symptoms affect ability to work. SSA evaluates all evidence of record to determine the “most you can do despite your limitations.” Typically, a claimant has completed certain forms which SSA has on file, describing his or her activities of daily living (ADLs). These forms ask questions about how a claimant spends an average day. Abilities: to cook, clean, do yard work, laundry, drive, mow the lawn, take trips, shop, watch movies, work on the computer; all give some indication as to whether those activities can be transferred to a work-like setting. So, for example, if a person states “I do nothing but sit and watch TV for 8 hours per day,” that is some indication, absent further explanation, that the person can sit and hold their head in a steady position for a full workday.

A claimant’s RFC comes into play at step 4 and, if necessary, at step 5 of the sequential evaluation process. At step 4, the question is whether the claimant can return to their past relevant work (PRW). Typically, a vocational expert is asked whether the claimant has the residual functional capacity to return to the type of work they have done in the past. If it is determined they do, the process stops, and a determination of “not disabled” is entered.

In making this determination, the adjudicator looks at the PRW as performed by the claimant, and as performed in the national economy. The Dictionary of Occupational Titles (DOT) is consulted for a definition of, among other things, the type of work performed, and exertional, and skill levels involved in performing the work. If it is determined that a person no longer retains the RFC to return to PRW, the evaluation is used again at step 5, to determine whether there are any jobs in the national economy the person can still do. If there are, the claimant is found “not disabled.”

Given the relative unlikelihood of meeting a listing at step 3, all claimants and their representatives should be prepared for this RFC assessment, in anticipation of steps 4 and 5 of the evaluation process. The importance of development of this aspect of a claimant’s case cannot be overestimated. A claimant should make every effort to obtain questionnaires tailored to their specific physical and mental impairments, and have them completed by their treating physicians. Claimants are often sent to consultative examiners (CEs) by SSA, for the purposes of obtaining just such a report. The CEs usually perform only cursory examinations, and generally determine that, with respect to ability to perform the 7 exertional functions (lifting, carrying, standing, walking, sitting, pushing, and pulling) a person is capable of at least sedentary, if not light work.
SSA has determined there are 1600 separate unskilled sedentary and light occupations in the national economy, most of which can be learned with a short demonstration in less than 30 days, and each of which represents hundreds of thousands of jobs across the nation. This represents a significant job base. It is therefore very important that a claimant be able to provide evidence from their treating physician to counter the RFC findings of the CEs.

READ FULL ARTICLE

VISIT SOCIAL SECURITY LAW TODAY

Acceptable Medical Sources: Who is considered acceptable and how are unacceptable medical sources treated?

When you apply for social security disability benefits, the Social Security Administration (SSA) uses medical and other evidence to determine whether an individual’s impairment(s) meet the SSA requirements for disability. When making a determination of disability, SSA will consider ALL available evidence in the individual’s case record. This includes medical evidence from acceptable medical sources, other evidence from medical sources, statements by the individual and others about the impairment(s), information from other non-medical sources and decisions by other governmental and nongovernmental agencies. However, not all forms of evidence are given the same weight by SSA when determining whether to award benefits.

Acceptable Medical Sources

SSA makes a distinction between acceptable medical sources and other health care providers who are not acceptable medical sources. Acceptable medical sources are licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists and qualified speech-language pathologists.

Evidence from acceptable medical sources is needed to establish the existence of a medically determinable impairment. Acceptable medical sources can give medical evidence and can be considered treating sources whose medical opinions may be entitled to controlling weight. Only acceptable medical sources can give medical opinions, which are statements from an acceptable medical source that reflects judgments about the nature and severity of an individual’s impairment. This includes symptoms, diagnosis and prognosis, and what an individual can and cannot do despite their impairments.

READ FULL ARTICLE

VISIT SOCIAL SECURITY LAW TODAY

What to Expect at a Hearing for Disability Benefits

The hearing for disability benefits will take place as follows:

• The ALJ will start the record and go over preliminary issues such as swearing in all witnesses.

• The ALJ or your social security attorney will elicit your testimony, which will take up the bulk of the hearing. Whether or not it is the ALJ or your social security attorney depends on the ALJ’s preference. Your social security attorney will have an opportunity to ask you additional questions if necessary.

• If present, the ALJ will ask a medical expert to testify about the severity of your condition. Note that many hearings for disability benefits do not have medical experts. This is neither “good” nor “bad.” Often, it just has to do with the ALJ’s preference.

• If present, the ALJ will ask a vocational expert to classify your past work and whether he/she believes you are able to return to it or any other jobs that exist in the national economy. Again, whether or not a vocational expert is present likely has to do with the judge’s preference.

• The judge will close the hearing for disability benefits.

Your Testimony


Either the judge or your social security attorney will elicit your testimony at the hearing. For purposes of this analysis, we will assume the judge is the one asking the questions. The types of questions asked at your hearing will vary, but will fit into the following basic outline:


· Your basic information (age, living situation, etc).
· Your highest level of education
· Your work history over the last 15 years
· Your disabling conditions
· Your medical treatment/medications & side effects
· Your daily activities/how you spend your day
· Your RFC assessment


Your Work History


It is important to note you should be as accurate as possible in describing your past work. You need not know the name of each employer, or exact dates of employment. Further, if you had several jobs but all in the same line of work (i.e., customer service), it’s enough to say “I worked in customer service” for “x” amount of years.


What is especially important, however, is how you performed your jobs. Think of what level of exertion was needed to do your past work. Did you sit all day at your job? Or did you stand most of the day? Was a mix of standing and sitting required? Were you required to lift heavy objects? What was the heaviest object you were required to lift? Above all else, think about why you wouldn’t be able to return to these jobs. Then, think of the easiest job you ever had and why you wouldn’t be able to do that now. At your hearing, this is exactly what you will need to prove.


Remember, whether or not you are able to find work is irrelevant. The process the judge will use to determine whether you’re disabled asks only whether any jobs exist that you might be able to do after figuring in your age, education, and any skills earned from past work.


One final note on working: if you attempted to work at any time during the application process, please make sure to discuss the specifics of the work attempt with your social security attorney. He/she will need to know for how long you worked, how much you made at your job, and the general duties that were required in order to perform the work. Prepared with this information, your social security attorney will be able to advise you as to whether or not you have a viable claim, and if so, how to argue your case effectively.


Your Disabling Conditions


Don’t forget to describe to the ALJ all of your conditions. Describe symptoms in detail, i.e., where the pain is, what is feels like, how often you feel it, its level of intensity with and without medication, on good and bad days, and how many bad days you have in a month. If you have mental and physical conditions, take time to describe each. Don’t forget other non-exertional symptoms like fatigue, difficulty concentrating, poor memory, fear of dealing with the public, etc.


Above all else, your hearing is not a time to be brave. Many claimants are hesitant to talk about a condition that is embarrassing to them. Remember, the judge as well as your social security attorney and any experts in the room are accustomed to hearing this sort of testimony. Do not be ashamed if you become emotional. Claimants who do not get emotional when talking about things that are difficult may seem disingenuous. Your candor and emotional vulnerability will not hurt your claim. One of the main purposes of the hearing is to give the ALJ and opportunity to gauge whether or not you are telling the truth. Thus, providing the most candid and honest answers is of key importance.


Your Medical Treatment


The judge may ask questions about past surgeries, medical tests performed, specialists you’ve seen, physical therapy you’ve tried, whether you’ve been given a cane or walker to help you walk, etc. The judge will want to know what you’ve tried to do in order to get better. The judge will also want to know what medications you’re currently on, and possibly what others you’ve tried. Don’t forget to talk about side effects from your medications as they can be very important. For instance, if pain medication reduces your pain, but makes it so that you are very drowsy and can’t remember to do simple tasks, this is an important detail. It means, while you can do something to help improve your condition, doing so comes with its own repercussions that further affect your ability to function normally.

READ FULL ARTICLE

VISIT SOCIAL SECURITY LAW TODAY