The Code of Federal Regulations 416.935 states: "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, unless we find that you are eligible for benefits because of your age or blindness.
The regulation goes on to say: "...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..."
I sometimes explain this to claimants thus: You may be disabled in spite of drug or alcohol addiction, but not because of it.
Substance abuse is not material to disability if the claimant would still be disabled if he/she stopped abusing the substance. For example: An individual has severe degenerative disc disease which meets the Social Security definition of disability. In addition, the claimant also suffers from severe alcohol addiction and abuse. Since he/she is disabled without consideration of the substance abuse, the abuse is not material to the claim and it may still be approved.
A different example: A claimant has no severe physical impairment; however, he/she has severe mental impairments, which include psychosis and paranoia. The mental illness is so severe that the claimant cannot work. But in addition to mental illness, the claimant has a longstanding history of severe drug abuse. The treating psychiatrist states in the medical record that the drug abuse is a major contributing factor to the mental disorders. The doctor has told the claimant several times that if he/she would stop abusing drugs, the mental disorders would substantially improve.
In this case, Social Security will likely find that the drug abuse is material to the disabling impairment. This is true because: (1) The drug abuse materially contributes to the mental impairment(s); and (2) The mental impairments would likely improve to the point that the claimant would no longer be disabled if he/she stopped the drug abuse. Therefore, it is likely that the claim will be denied.
What Are Common Defenses for Substance Abuse in Hearings?
Your attorney might successfully argue the following in defense of substance abuse in a disability claim:
1) The substance abuse falls outside the relative period of disability and is therefore immaterial (which would usually be true).
2) It cannot be medically demonstrated that the disabling impairment would substantially improve if the claimant stopped abusing substances. (A more doubtful argument).
3) The claimant has chronic, severe symptoms which will not significantly improve even the substance abuse stops.
Also, let me say that substance abuse is never material to a claim when the individual qualifies for a benefit due to age or blindness. In other words, if an individual is at least age 62, he/she qualifies for an early retirement benefit regardless of substance abuse. If an individual is blind according to Social Security regulations, then he/she is entitled to a disability benefit based on blindness and any substance abuse doesn't matter.
I must say that I find it rather difficult for Social Security to deny a claim based on substance abuse IF there are other severe and chronic impairments present. The burden of showing materiality lies for the most part with the Social Security Administration. It cannot merely believe that substance abuse is material to the disability, it must provide evidence to demonstrate it. So, a claimant should never assume that a claim will be denied just because of alcohol or other substance abuse.
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