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.