HOW PAST DRUG OR ALCOHOL ABUSE AFFECTS A DISABILITY CLAIM

Here's a question we get a lot:  "I have some substance abuse in my past.  Will this make it impossible for me to get Social Security disability benefits?"

The short answer is, No, substance abuse may not always stop you from getting disability benefits.

The more complete answer is:  It depends on the materiality of the substance abuse.

Does the substance abuse materially contribute to your disability?  

Here are the 3 questions that help answer that:

1.  Did the substance abuse occur within the relevant period, that is, during the period for which you are trying to get benefits?  If not, it is not material and will not affect the claim.

2.  If you had not abused drugs and/or alcohol, would you still be disabled by one or more impairments?  If the answer is Yes, then the substance abuse is not material and will not affect the claim.

3.  Finally, if you stop using drugs or alcohol today would your impairment(s) improve to a point that you would no longer be disabled?  If the answer is No, then the substance abuse is not material and will not affect your claim for benefits.

While Social Security may not pay a disability benefit where substance abuse materially contributes to the impairment, individuals who have drug or alcohol abuse in their past may still be disabled by other unrelated impairments and may still qualify for a benefit.

Let me give just one example of this:  Mr. Gill Claimant had a severe drug abuse problem from 2001 to 2006.  In 2006, he went to rehab and got off the drugs.  He has remained drug free.  However, in 2008 Mr. Claimant was diagnosed with an inoperable brain tumor which disabled him.  He applied for a disability benefit beginning June 1, 2008.  The drug abuse is not material to the claim for the following reasons:

A.  The abuse occurred prior to the claim for benefits; it is outside the "relevant period."  No benefit is being asked for during the period of drug abuse.

B.  There is no medical evidence that the drug abuse caused or contributed materially to the brain tumor, and

C.  Since Mr. Claimant is now totally free of any drug abuse, his medical impairment is not going to improve to the point that he will no longer be disabled.

Keep in mind that any one of the above statements (A, B or C) would make the drug abuse immaterial.  All 3 statements don't have to be true.

We often see the materiality issue with alcohol abuse.  If an individual abused alcohol for years and developed cirrhosis of the liver, which is now disabling, was the alcohol abuse material to the impairment?  By asking the A, B and C questions above, this can be determined.

Let's assume that the alcohol abuse was within the relevant period.  Abuse did occur during the same period for which a benefit is being sought.  So, question B:  Did the alcohol abuse contribute to the cirrhosis?  The answer is, yes, probably.  Now question C:  If the claimant stops using alcohol today and never touches it again, will his cirrhosis improve to the point that he will not longer be disabled?  No, so the alcohol use is not material to the claim.

This may seem cut-and-dried in theory.  However, in reality-- when you get before a judge--this issue can be a lot more subjective and tricky.   Good legal counsel is recommended.


 

HOW TO IMPROVE YOUR SSDI CASE AND INCREASE YOUR ODDS OF BEING APPROVED

There are strong disability cases, average disability cases, and weak disability cases.  Sometimes, even an average case can be improved to become strong.  Maybe a weak case which has little chance of success can be made stronger.

For sure, a case is what it is:  the facts will always be the facts.  Here are things you simply cannot change:

• age
• education
• types of impairments
• work history

 But within that framework, you may be able to improve the medical documentation that better describes and defines your impairments.  You may also be able to add opinion evidence from your doctor which substantially improves the strength of your case from a legal point of view.

Simply put, there may be things you can do to increase your odds of getting paid a disability benefit.

When someone asks me to help with their Social Security disability case (often one that has already been denied once or twice), I ask myself this question:  How can I add value to the case?

How can I make it a stronger case?  How can I increase the odds of getting the case paid?

Often, I need more medical evidence or better medical evidence.  I rarely get a new case where there has been adequate work on the medical evidence.  Things are always missing, incomplete or vague.  Going to trial with a case which has weak or incomplete evidence is a waste of time.

One piece of evidence that is most often overlooked is "opinion evidence."  What is your doctor's opinion of your ability to function in a work environment?  What is your maximum lifting limit?  How long can you sit, stand, walk  in an eight-hour day?  How much will you be off task due to pain or other symptoms?  Will you be absent from work more than 1 or 2 days per month?   This information is never found in medical records.  Social Security almost never asks these questions of your doctor(s).  

It's often attention to small details that wins disability cases.  When you go before a judge you must go with proof of your disability in hand.  

Every case can be strengthened and improved.  Why not let someone look at your case before it's too late?
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The Forsythe Firm
Social Security Disability Counselors
7027 Old Madison Pike, Suite 108
Huntsville, AL 35806
"Across from Bridge Street"

(256) 799-0297      Free Consultations

 

YOU CANNOT BE PARTIALLY DISABLED

Unlike some government agencies, Social Security does not recognize a partial disability.  Whereas the Veterans Administration may award a 40 percent disability or a 10 percent disability, Social Security only recognizes total disability.  You are either disabled or not--nowhere in between.  

It's confusing because Social Security will sometimes issue a "Partially Favorable Decision."  This is not a partial disability.  It is the decision that is partially favorable, not the disability or the benefit. 

Usually a partially favorable decision means that the onset date has been changed.  The claimant alleged to have become disabled on a certain date; however, Social Security disagrees with the date and agrees to pay benefits at a later date.  This causes a reduction in back pay and is not fully favorable to the claimant, hence the decision is partially favorable.

For example, I claim in my application that I became disabled on June 1, 2018.  I want to be paid back to that date.  However, Social Security finds that I did not become disabled until December 1, 2018 and they only pay me back to that date.  Thus, I have lost 6 months of back pay.  So, while I am fully disabled, I receive less back pay than I wanted.  Thus, the decision is only partially favorable to me.  (It would have been fully favorable if they had paid me back to June 1, as I requested).

Social Security disability is a complicated concept, replete with thousands of rules, regulations, stipulations, court decisions, precedents, laws and judicial notices.  To help wade through all of this stuff, most claimants hire an attorney or "representative" to represent them.  

Our office will provide a free consultation and case review.  We never ask you to pay a fee unless you win and recover back pay.
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The Forsythe Firm
Social Security Disability Counselors
7027 Old Madison Pike, Suite 108
Huntsville, AL 35806
Call us:  (256) 799-0297

E-mail us:  forsythefirm@gmail.com

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