Posted: Sun Feb 07, 2010 01:02 pm Post subject: DAA disentanglement
This is the first of at least a couple of posts commenting on SSA's policy about drug addiction and alcoholism (DAA). I mean to argue in these posts that there are no good indications that SSA means to do anything more in the near future than publish its DAA policy in a more formal setting, with perhaps some neatening up around the edges, particularly for how to draw inferences from periods of abstinence. I offer this only as my own understanding. Please see the disclaimer below.
For this first post I will only discuss a foundational question about the need to disentangle.
The underlying principle under existing 20 CFR 404.1535 is that a determination that DAA is material requires an assessment of what limitations would exist if DAA stopped. The regulations explain that in making such determinations:
Quote:
[W]e 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.
This language imposed a positive obligation: as part of determining whether DAA is material, SSA will evaluate the physical and mental limitations that would remain. By my reading, this will-evaluate and would-remain language allows for no presumptions. That is, SSA adjudicators cannot take it as a starting point that a substance abuse/dependence disorder affects functioning.
Treating 20 CFR 404.1535 as imposing a positive obligation to disentangle the effects of DAA from other impairments fits with the following language from POMS DI 790070:
Quote:
SSA will make a finding that DAA is material only when the evidence establishes that the individual would not be disabled if he/she stopped using drugs or alcohol.
http:/policy.ssa.gov/poms.nsf/links/0490070050
Here, the key language here is "only when the evidence establishes." "Only" is restrictive. It precludes finding a material DAA condition when the evidence does not establish the non-DAA limitations. The evidence does not establish that DAA is material not just when there are positive indications of a comorbid impairment that is disabling all on its own, but also when it's not possible to disentangle the effects of a combination of impairments, one of which is a substance abuse/dependence disorder.
The POMS section I have quoted dates to 1996, shortly after the questions and answers about DAA policy in the famous "DAA teletype" (more recently published as Emergency Message 96200).
In May 2009, a central office policy component, the Office of Medical Listing Improvement, had occasion to answer some DAA questions that had come up in the Atlanta region. Part of this clarification involved simply quoting the DAA teletype, from Question 27, with some instructive emphasis (italics supplied by OMLI):
Quote:
[A] finding that DAA is material “will be made only when the evidence establishes that the individual would not be disabled if he/she stopped using drugs/alcohol.”
Do you see? When you emphasize that disentangling is possible "only when the evidence establishes," you've got the same only-when positive requirement that comes out of the reading of 404.1535 that I have offered above.
If SSA is planning any about-face for its DAA policy, then at least for disentanglement, this will require changing a policy that it was still preaching to front line adjudicators as recently as May 2009. We can't rule this out, of course. Who knows what evil lurks in the hearts of men? But it certainly seems unlikely.
Next post: periods of abstinence. _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
"[Federal Register: January 29, 2010 (Volume 75, Number 19)] [Notices] [Page 4900] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr29ja10-128] ======================================================================= ----------------------------------------------------------------------- SOCIAL SECURITY ADMINISTRATION [Docket No. SSA-2009-0081] Drug Addiction and Alcoholism AGENCY: Social Security Administration. ACTION: Request for Comments. ----------------------------------------------------------------------- SUMMARY: We are requesting your comments about our operating procedures for determining disability for persons whose drug addiction or alcoholism (DAA) may be a contributing factor material to our determination of disability. DATES: To ensure that your comments are considered, we must receive them no later than March 30, 2010. "
I think we should stand this problem on its head. Before 1996, when a claimant could win benefits due to alcoholism, it was very difficult to prove that a person was an alcoholic. The same standards should apply now. The only thing that has changed is that the rule has flipped about when to pay. What was good for the goose before 1996 is now good for the gander in 2010.
Here is what I wrote in a failed class action brief 12 years ago after the 1996 Public Law 104-121 went into effect:
Quote:
The black-letter law of the Social Security Act, as amended, only denies benefits where "alcoholism or drug addiction" are material. 42 U.S.C.A. 1382C (a) (II) (J). "Alcoholism" has always been hard to prove. Before public law 104-121, the courts drew fine distinctions between alcoholism, abuse, dependence, and simple use. Many who claimed alcoholism as a disabling condition were found to simply suffer from one of the lesser impairments or no impairment at all, due to lack of medical diagnosis. The evidentiary burden was great.
The Seventh Circuit has determined that there are varieties of drinking behaviors that fall below the threshold of "alcoholism" and therefore clear, consistent, medical evidence is required to prove that a claimant suffers from alcoholism and not some lesser alcohol related malady. For example, in Howell v. Sullivan, 950 F.2d 343 (7th Cir. 1991), Howell testified that he felt nervous and depressed. He also testified that for the past five years he drank alcohol everyday -- approximately three six-packs of beer a day. Before the hearing he drank one beer and three glasses of vodka to help ease the back pain. Twice he was convicted of driving under the influence of alcohol and consequently lost his driving privileges. However, Howell stated that he had never lost a job due to his drinking and he had not experienced unusual problems with his family because of it. Even though a laboratory test indicated that he had an elevated level of a liver enzyme, SGOT, the court reasonably determined that Howell was not an alcoholic for the purposes of the Social Security Act. See also O'Connor v. Sullivan, 938 F.2d 70 (7th Cir. 1991) (in addressing claimant's alcoholism, the inquiry was whether claimant was unable to control his drinking and unable to do even light work unless he controlled his drinking, rather than whether alcoholism so impaired claimant's brain that he could no longer live on his own); Nelson v. Bowen, 855 F.2d 503 (7th Cir. 1988) (the regulations explicitly provide that the presence of "a condition diagnosed as addiction to alcohol or drugs . . . will not, by itself, be a basis" for finding that an individual is or is not under a disability. "As with any other medical condition," the determination as to disability in alcohol cases must be "based on symptoms, signs, and laboratory findings" citing 20 C.F.R. § 404.1525(e) (1988)); and Strunk v. Heckler, 732 F.2d 1357 (7th Cir. 1984) (a diagnosis by a medical doctor of "acute alcoholism" without any further supportive explanation or findings consistent with the same did not provide an adequate medical basis for the diagnosis.)
_________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
403[at]traverlaw.com
Not one that will work for you unless you are with SSA and/or ODAR. _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
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