Author: James T. Crytzer
We all know that there is no such thing as perfection. At Shook & Stone,
we take our clients as we find them, complete with their all-to-human
imperfections. As lawyers, we understand that our clients are merely reflections
of ourselves, deserving of compassionate representation in spite their faults.
With these thoughts in mind, it is fairly common that we are asked to address
the issues of drug and alcohol use and the corresponding impact of these
behaviors upon disability claims. Potential clients frequently express
concern that their right to disability will be affected by their struggles
with abuse. This blog specifically addresses that issue.
Regardless of whether your claim progresses to a hearing, you have an obligation
to tell the truth. If you testify before an Administrative Law Judge (referred
to as the “ALJ”), you will be sworn tell the truth. The oath
you will take is your promise to provide full and complete testimony,
even if that requires you to share information which could negatively
impact your claim. You should be honest about any of your past transgressions,
recognizing that past mistakes will not automatically defeat your claim.
Remember that you can’t hide from the truth, which is likely referenced
within your medical records.
As outlined in prior blogs, the ALJ is required to follow a five-step evaluation
process when considering an individual’s impairments. If the ALJ
finds you disabled, and your records indicate or address illegal drug
use or alcohol abuse, the ALJ must then determine whether your substance
abuse is a contributing factor material to the determining the issue of
Chavez v. Astrue, 699 F.Supp.2d 1125 (C.D.Cal. 2009)
In making that determination, the ALJ determines whether the individual
would still be disabled if he/she stopped using alcohol or drugs.
Ledesma v. Astrue, 673 F.Supp.2d 1016 (C.D.Cal. 2009). If the use or abuse is a contributing
factor material to that determination, then you cannot, by law, be found
disabled. SSR 13-2p.
The burden of proving that drug or alcohol abuse is not a contributing
factor lies with the Claimant.
Para v. Astrue, 481 F.3d 742 (9th Cir. 2007). In simpler terms, if abuse is an issue, you
must show that your disability would be present, with or without use of
drugs and/or alcohol.
Any individual considering applying for disability should contact an attorney
immediately if they are concerned about current or past drug and alcohol
use or abuse. While these issues will not necessarily prevent someone
from obtaining disability benefits, he/she must meet the burden of proving
that the use or abuse is not a significant contributing with regard to
the claim of disability.
Over the years, we have represented thousands of claimants facing these
issues. We welcome the challenge of establishing disability in spite drug
and alcohol use and abuse. We understand that that abuse often represents
an individual’s struggle to live with disabilities that have changed