The Social Security Administration has an interesting problem.  SSA’s Disability Insurance Benefits program, by law, can only evaluate medical conditions with objective medical evidence.  Symptoms alone are not enough.  Instead, medical signs and laboratory findings must prove “medically determinable” physical or mental impairments.  20 C.F.R. § 404.1529.  Social Security’s own rulings drive this same point home:  “No symptom or combination of symptoms can be the basis for a finding of disability…unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment.”  Social Security Ruling 96-4p.

What’s the problem?  SSA currently allows itself to evaluate Drug Addiction and Alcoholism (DAA) without the proper objective evidence.  Social Security Ruling 13-2p, issued last year, clarifies its longstanding policy to deny Disability Insurance Benefits (or SSI) if drug addiction or alcoholism (DAA) causes disability.  The statutory term for this is “materiality”.

Social Security Ruling 13-2p states it incorporates objective medical diagnoses for mental health claims.  It cites the recent incarnation of the Diagnostic and Statistical Manual of mental disorders, version 5 (the DSM-5, for short).  But in cases of mental illness, the actual DSM-5 includes psychiatric diagnoses for substance-induced mental illness:

• Substance/Medication-induced Psychotic Disorder
• · Substance/Medication-induced Bipolar and Related Disorder
• · Substance/Medication-induced Depressive Disorder
• · Substance/Medication-induced Anxiety Disorder
• · Substance/Medication-induced Obsessive-Compulsive and Related Disorder

When psychiatrists and mental health professionals objectively diagnose these substance or medication-induced mental disorders above, they also determine the severity of these disorders based on the number of criteria endorsed: 2–3 criteria indicate a mild disorder; 4–5 criteria, a moderate disorder; and 6 or more, a severe disorder.

A severe, DAA-induced mental disorder can be a medically-determinable impairment under 20 C.F.R. 404.1529.  It can only be acceptable medical evidence of “material DAA”, however, when supported by objective medical signs and laboratory findings.  For Social Security claims with this evidence, SSA should determine DAA is medically “material” and ignore the limitations from the underlying mental impairment.

So what if these diagnoses above do not appear in the treating mental health records of a person applying for Social Security Disability?  Here’s the rub.  SSR 13-2p candidly explains that only SSA decides whether substance use disorders “medically cause or exacerbate” impairments.  Treating doctors are out.  What happened to SSA evaluating only objective medical evidence?  It’s gone.  The Ruling’s footnote 19 is stunning.  SSA plays doctor and decides for itself when claimants have substance-induced mental illnesses:

The finding about materiality is an opinion on an issue reserved to the Commissioner under 20 CFR 404.1527(e) and 416.927(e). Therefore, we will not ask a treating source, a CE provider, a medical expert, or any other source for an opinion about whether DAA is material. We will instead ask for medical opinions about the nature, severity, and functional effects of a claimant’s impairment(s).  In cases involving physical impairments, we may ask for medical opinions that project the nature, severity, and functional effects if the claimant were to stop using drugs or alcohol [emphasis added].

Any way you slice it (and I’ve seen it sliced quite thinly), materiality is a medical determination –

not legal.  The DSM-5 clearly identifies mental illness caused by DAA.  Social Security Ruling 13-2p violates the evidentiary requirements set forth in 20 C.F.R. § 404.1529.  Having practiced this area of law for over 20 years, I know of no other instance in which SSA reserves the exclusive right to make medical determinations.  It plays doctor whenever it uses “materiality” to find substance-induced mental disorders that are not diagnosed in the objective medical evidence.  Isn’t this tantamount to manufacturing medical evidence?  Yes.

We cannot pay people for being drug addicts and alcoholics benefits.  But on the same token, SSA can’t re-diagnose others who primarily have psychosis, bipolar, depression, or anxiety disorders whenever DAA shows up.

This is the stuff from which class actions are made.

If you have a Social Security benefits claim, mental illness and DAA issues don’t mix.  Immediately get help to stay totally clean and sober.  You should also hire a Social Security benefits attorney.  Your attorney should ask your mental health professionals in writing:  “Does your patient have a substance-induced mental disorder as recognized by the DSM-V.”  If no, SSA should follow the treating medical evidence – not create it.

Andrew Kinney, Esq.

Hoglund Law Offices

HoglundLaw.com

1/29/14

Andrew Kinney, Esq., is licensed in MN, OH, NY, and WI.  He is an attorney with Hoglund, Chwialkowski & Mrozik, PLLC, based in Roseville, MN.  He began practicing Social Security benefits law in 1992.  He is a founding chair of the Social Security Disability Law Section for the Minnesota State Bar Association.  He is currently an editor of the Social Security Practice Guide, a multi-volume legal guide for Social Security lawyers and advocates.