As of 2012, 18 states which have legalized medical marijuana. This has meant that marijuana use is showing up in more and more Social Security disability case. But, if you think you know how MJ affects a disability case, you don’t know the half of it!
Social Security’s Drug Abuse and Alcoholism Policy (DAA):
First off is the obvious issue: is marijuana use “drug abuse”? Let’s take a look at the background.
Section § 416.935 is the regulation which deals with alcohol and drug use.
How we will determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.
(a) General. If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability, unless we find that you are eligible for benefits because of your age or blindness.
(b) Process we will follow when we have medical evidence of your drug addiction or alcoholism. (1) The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.
(2) In making this determination, we 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.
(i) If we determine that your remaining limitations would not be disabling, we will find that your drug addiction or alcoholism is a contributing factor material to the determination of disability.
(ii) If we determine that your remaining limitations are disabling, you are disabled independent of your drug addiction or alcoholism and we will find that your drug addiction or alcoholism is not a contributing factor material to the determination of disability.
Simply put: Social Security first has to determine if the individual is disabled. If the answer is, yes, then Social Security has to decide whether the drug or alcohol use is a “contributing factor material to the determination of disability.” The two key words there are “contributing” and “material.” Generally, this is evaluated in a “but for” test: would you still be disabled but for the use of of drugs or alcohol. Or, if you stopped using drugs and alcohol, would your disability continue.
If you would still be disabled (not just have a medical condition), the drug abuse and alcoholism might not be material and contributing. If the drug use makes the condition worse and would not be disabled if the drug and alcohol use stopped, then benefits will likely be denied.
For example in a depression case, marijuana use will likely be viewed as material and contributory. However in back injury case with significant pain, marijuana use is likely not likely to be material and contributory. This is because even if the individual stopped using marijuana, the individual’s back problem would not go away.
This issue is further discussed in Social Security Ruling 82-60 Evaluation of Drug Abuse and Alcoholism.
Where the definition of disability is met in a title XVI claim, and there is evidence of drug addiction or alcoholism, a determination must also be made as to whether the drug addiction or alcoholism was a factor material to the finding of disability for purposes of applying the treatment and representative payee provisions. In making this decision the key issue is whether the individual would continue to meet the definition of disability even if drug and/or alcohol use were to stop. If he or she would still meet the definition, drug addiction or alcoholism is not material to the finding of disability and the treatment and representative payee provisions do not apply. The drug addiction and alcoholism requirements are imposed only where (1) the individual’s impairment(s) is found disabling and drug addiction and/or alcoholism is a contributing factor material to the determination of disability, and (2) the same impairment(s) would no longer be found disabling if the individual’s drug addiction or alcoholism were eliminated, as, for example, through rehabilitation treatment.
Failure to Follow Prescribed Treatment
Another issue is the failure to follow prescribed treatment. This is addressed in Social Security Ruling 82-59.
An individual who would otherwise be found to be under a disability, but who fails without justifiable cause to follow treatment prescribed by a treating source which the Social Security Administration (SSA) determines can be expected to restore the individual’s ability to work, cannot be virtue of such “failure” be found to be under a disability.
A case can be denied disability benefits, if the individual fails to follow prescribed treatment. This comes up in disability cases when marijuana may be worsening an individual’s condition and particularly when a doctor recommends against the use of marijuana.
However, there are a number of factors involved in “failure to follow prescribed treatment” analysis. The treatment has to come from a treating physician (a Social Security consultative examiner’s opinion of what you should do, is not sufficient). Also, the treatment has to restore the ability to work. This is just common sense. If the treatment would not be effective enough to help you return to work, it does not matter if you follow the treatment or not. Further, there is the issue of a justifiable excuse in not following treatment. This may include religious belief, inability to afford treatment, another medical source recommending against the treatment, the treatment has a high degree of risk. Take a look at the ruling for a full discussion.
It may come as a surprise, but the biggest impact marijuana may have on your case is how it affects your credibility. Not because you are using marijuana, but whether you admit to using it. At a recent continuing legal education program, two speakers (including one judge) touched on this point.
If marijuana shows up in your records (e.g. treatment notes, emergency room, psychological records), and you deny it, it will likely adversely impact your credibility. If you lie about your marijuana use, the judge may not believe anything else you say. The simple rule is, “don’t hide it if it is in the record.”
You can also expected to be asked how you pay for your marijuana? The answer may be as simple that you pay for the marijuana with your spouse’s income. Or, your friends may give you your marijuana. However, expect “gift” answers to be followed up with questions asking to dollar value you use per day or per week. Social Security will add this up to determine a monthly and yearly value for these gifts. If the value of these gifts is substantial, Social Security may be suspicious that you are providing some type of service in exchange (which might be a substantial gainful activity or may show an ability to do some type of work).
Another situation which can arise is where an individual is paying a substantial amount for marijuana but states he or she cannot afford prescription medications. There may be a simple explanation that is more effective that other prescriptions medications. However, paying for marijuana instead of diabetes medication (as one example). This may call into question the severity of the other conditions or raise the “failure to follow prescribed treatment” issue.
So what can you do?
In many disability cases, there appears to be an unspoken presumption that any marijuana use as abuse; even if you are in a state which permits medical marijuana. It may help to submit a copy of medical marijuana card to Social Security. However, if you were seen only once by a “marijuana dispensary doctor,” there may be the perception that the card was “rubber stamped” and there was minimal (or no) medical examination or inquiry.
It is often better to obtain a written statement from your regular medical or mental health provider. It is unlikely that you will be able to get the provider to “prescribe” marijuana. However, the provider may be willing to state that he or she is aware of the marijuana use and believes it is beneficial in addressing particular symptoms (which the doctor should describe). This is not guaranteed to resolve the problems which come up in disability cases involving marijuana. However, it can provide some evidence addressing the “contributory and material and “failure to follow prescribed treatment” issues.
Do you have a decision addressing marijuana use? What did the judge say in your case?
Image provided by Nationaal Archief.