SSA Disability Application Involving Drugs & Alcohol Abuse: Problems?

Since 1996, the Social Security Act has precluded a finding of “disabled” if there is a finding that DAA is a contributing factor material to the determination of disability.  The 1996 changes further narrowed a 1994 statutory amendment that imposed a time-limit on receipt of benefits if there was a DAA “material” finding.  It is interesting to note that SSA issued final regulations after the 1994 amendment, but never the revised its regulations after the 1996 statutory change precluding eligibility.  20 C.F.R. §§ 404.1535 and 416.935.  As a result, the primary guidance for determining eligibility where DAA is an issue is Emergency Message (EM) EM-96200, “Questions and Answers Concerning DAA from the 07/02/96 Teleconference–Medical Adjudicators- ACTION.”

SSA has published a notice in the Federal Register “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.”  75 Fed. Reg. 4900 (Jan. 29, 2010).    Comments are due no later than March 30, 2010.

The issues are:

1.What evidence should SSA consider to be medical evidence of DAA?
2. How should SSA evaluate claims where there is a combination of DAA and at least one other mental or physical impairment?
3. Should SSA include use of cigarettes and other tobacco products in its instructions?
4.How long a period of abstinence or nonuse should be considered to determine whether DAA is material to the disability determination?
5.Is there any special guidance SSA can provide for individuals with DAA who are homeless?