Are Changes to DAA Materiality Rules in the Mix?

March 10, 2010

Author: Catherine M. Callery (Kate) | Louise M. Tarantino

The Social Security Administration (SSA) has taken an unusual step, asking for comments on the procedures the agency follows when evaluating drug addiction or alcoholism (DAA).  In an odd twist, SSA is asking for our opinion about what, if any, changes we think it should make to the instructions used to evaluate these DAA claims.  This is a great opportunity for us to let SSA know what we really think about these issues.  But nagging questions remain:  Why publish this request for comments now?  SSA has submitted no proposed legislation to change the current DAA statutory provisions.  We know of no recent publicity about this issue. Based on the questions posed by SSA below, some wide-ranging changes appear to be under consideration. 

As background, a review of the DAA provisions might be helpful.  The law provides that a person shall not be considered disabled for purposes of the Social Security Disability Insurance (DIB) or the Supplemental Security Income (SSI) programs if his or her DAA is a contributing factor material to SSA’s determination of disability.  42 U.S.C. 423(d)(2)(C) and 1382c(a)(3)(J)).  If SSA finds that a person is disabled and has medical evidence of DAA, the agency must decide whether the DAA is material to a determination of disability.  To do this, SSA evaluates which of the person’s disabling physical and mental limitations would remain if he or she stopped using drugs or alcohol. SSA then determines whether any or all of these remaining limitations would be disabling.  The DAA is material to SSA’s determination of disability when it finds that the person’s remaining limitations would not be disabling. 20 C.F.R. §§404.1535, 416.935.

To provide guidance on how it interprets the DAA provisions of the Act, SSA issued instructions in an Emergency Message (EM-96200) issued on August 30, 1996. https://secure.ssa.gov/apps10/.  (See discussion of EM-96200 and various Circuit Court cases in January 2008 Disability Law News).  SSA later included some of those instructions in the Program Operations Manual System (POMS). https://secure.ssa.gov/apps10/poms.nsf/lnx/0490070050.  Since 1996, SSA has used these instructions and the regulations cited above to determine whether a person’s DAA is a contributing factor material to a determination of disability.

So, what does SSA want to know?  It is interested in our opinions on how it currently evaluates disability claims involving DAA.  Specifically, SSA is looking for suggestions on:

• What evidence should SSA consider to be medical evidence of DAA?
• How should SSA evaluate claims of people who have a combination of DAA and at least one other physical impairment?
• How should SSA evaluate the claims of people who have a combination of DAA and at least one other mental impairment?
• Whether SSA should include using cigarettes and other tobacco products in its instructions?
• How long a period of abstinence or nonuse should SSA consider in determining whether DAA is material to a finding of disability?
• Whether there is any special guidance SSA can provide for people with DAA who are homeless?

Comments are due by March 24, 2010. The Empire Justice Center will be filing comments, and we are happy to compile comments from other DAP advocates as well. NOSSCR and other legal services programs in NYC also plan to submit comments.

Ironically, we have been telling SSA what we think about their DAA rules and how they apply them in numerous administrative and federal court cases.  In the past year, the federal district courts have issued several favorable decisions in DAA cases.  For example, in Klement v. Astrue, 2009 WL 3837859 (N.D.N.Y. 2009), Magistrate Victor Bianchini held that an ALJ’s finding that DAA was material to a finding of disability was not supported by substantial evidence.  In that case, reports from the treating psychiatrist supported a finding that the plaintiff’s mental impairments remained disabling even after she stopped using drugs and alcohol.  The ALJ’s failure to deal with this evidence clearly and completely warranted a remand.

Furthermore, the Magistrate Judge cited the Emergency Transmittal noted above as good authority for the proposition that where it is not medically possible to separate out the effects of mental illness and substance abuse, an award of   benefits should be made. Magistrate Bianchini also cited Mitchell v. Astrue, 2009 WL 3096717 (S.D.N.Y. 2009), a good recent case that sets out the DAA criteria to be followed, and Orr v. Barnhart, 375 F.Supp.2d 193 (W.D.N.Y. 2005), a good decision where Judge Larimer remanded for calculation of benefits, finding that the claimant’s impairments would continue to exist even in the absence of her alcohol abuse; thus, alcoholism was not material to a finding of disability based on her mental disorders. Magistrate Bianchini also made an important ruling in the Klement case with respect to the Appeals Council’s duty to undertake a meaningful review of new evidence submitted to it.  Plaintiff in Klement was represented by Louise Tarantino of the Empire Justice Center.

In another recent Northern District case, Stringer v. Astrue, 2010 WL 55925 (N.D.N.Y. 2010), Magistrate Bianchini again cited EM-96200, noting that although the Second Circuit had not ruled on the issue of the binding authority of the Emergency Teletype, other district courts within the Circuit have found the teletype to be persuasive authority in that it represents the sound judgment of SSA.

Several other cases warrant our attention. In another Magistrate Bianchini decision, O’Connell v. Astrue, 2009 WL 606155 (N.D.N.Y. 2009), the Court held that the ALJ failed to make the prerequisite finding of disability before moving on to consider whether DAA was material.  Substance abuse becomes material to a benefit determination only after the claimant is found to be disabled according to the sequential analysis, citing to 20 C.F.R. § 404.1535(a).  According to the Court, the “plain text of the regulation” requires the ALJ to first use the standard sequential analysis to determine whether the claimant is disabled, “without segregating out any effects that might be due to substance use disorders.”

The Magistrate Judge went on to discuss the applicable regulations, noting that the “key factor” in determining whether substance abuse is material is whether the Plaintiff would meet the definition of disabled if he stopped using drugs or alcohol. To make this determination, the ALJ will evaluate which of Plaintiff's limitations would remain if he stopped using drugs or alcohol, “and then determine whether any or all of [Plaintiff's] remaining limitations would be disabling.”  If the remaining limitations are not disabling, then drug and alcohol abuse is material, but if the remaining limitations are disabling, then drug addiction and alcoholism are not material. 20 C.F.R. § 404.1535(b)(1), (2)(i)-(ii).  The plaintiff in O’Connell was represented by Ken Hiller.

In Badgely v. Astrue, 2009 WL 899432 (W.D.N.Y. 2009), District Court Judge Curtin remanded a pro se plaintiff’s claim for further proceedings where the Administrative Law Judge’s (ALJ) finding that the claimant was continuing to abuse drugs and alcohol despite her testimony was not based on substantial evidence.

Lastly, in Glover v. Astrue, 2009 WL 35290 (N.D.N.Y. 2009), Magistrate Peebles held that in  analyzing the materiality of a plaintiff’s alcohol and substance abuse problems to his mental health conditions, the ALJ was bound to analyze all the evidence, not focus solely on the evidence most favorable to her decision.  Because reasonable doubt existed as to whether the ALJ deliberately chose only the medical evidence favorable to her determination of no disability by reason of plaintiff's drug and alcohol usage, the Magistrate recommended a remand for the purpose of reconsidering whether the evidence proffered by the plaintiff was sufficient to give rise to a finding of disability. Chris Cadin of Legal Services of Central New York represented the plaintiff in Glover.

Lest this discussion lull advocates into thinking that all DAA cases are successful in federal court, rest assured that there are numerous unfavorable decisions in each district court, discussion of which will be left for another day.  We will leave you, however, with citations to a couple of cases addressing one of the topics on which SSA is seeking our input, whether the agency should include using cigarettes and other tobacco products in its instructions.  Although we could argue the pros and cons of smoking, admittedly a rather one-sided debate in this day and age, few advocates would want to see a DAA type materiality test extended to smokers.

See for example, the case of Janas v. Barnhart, 451 F.Supp.2d 483 (W.D.N.Y. 2006), where Judge Arcara adopted the report and recommendation of Magistrate Judge Foschio remanding claim for payment of benefits of a closed period where the ALJ had placed undue emphasis on the absence of clinical findings in discrediting testimony and made findings not supported by the record.  The fact that the claimant smoked should not make her incredible where there was no suggestion that smoking contributed to her condition.  Additionally, her good work history enhanced her credibility, and no treating physicians questioned her credibility.  Another case is West v. Barnhart, 2008 WL 2561991 (W.D.N.Y. 2008), where an ALJ erred in failing to contact claimant’s treating physician to clarify the seriousness of her asthma and the extent to which stopping smoking would alleviate her symptoms.

We should view SSA’s invitation to voice our opinions on the agency’s handling of DAA cases as a great opportunity.  As advocates, we know that these are difficult cases, so let’s get our thoughts together and make some meaningful proposals for positive changes in this system.  Remember, comments are due by March 24, 2010.