Alcohol or Drug Addiction and Social Security Disability

Since the enactment of the Senior Citizen’s Right to Work Act of 1996, the courts have been faced with how substantively to apply the amendments when evaluating eligibility for disability benefits. The following survey of decisions includes Social Security disability cases in which the courts have either (1) substantively applied the new amendments, or (2) noted the likely result had the new amendments been applied.

Statutes

The Senior Citizen’s Right to Work Act of 1996 (“Right to Work Act”), Pub. L. No. 104-121, 110 Stat. 847-57 (1996) (amending 42 U.S.C. §§ 423(d)(2) & 1382(c)) eliminated alcoholism as a basis for obtaining disability insurance and Supplemental Security Income benefits. Section 105(a)(1)(C) of the Act provides, in pertinent part, that “[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor to the Commissioner’s determination that the individual is disabled.”

Tip

In many cases, alcohol or drug addiction is a symptom of an underlying mental or physical impairment.

Regulations

20 C.F.R. §§ 404.1535, 416.935

The listed regulations govern how the SSA determines whether a claimant’s drug addiction or alcoholism is a contributing factor material to the determination of disability. In general, if the SSA finds that a claimant is disabled and has medical evidence of drug addiction or alcoholism, the SSA must determine whether the drug addiction or alcoholism is a contributing factor material to the determination of disability.

The key factor to be examined in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether the SSA would still find a claimant disabled if the claimant stopped using drugs or alcohol. The SSA will first evaluate which of the claimant’s current physical and mental limitations, upon which it based the current disability determination, would remain if the claimant stopped using drugs or alcohol. The SSA will then determine whether any or all of the claimant’s remaining limitations would be disabling. If the remaining limitations would not be disabling, the SSA will find that drug addiction or alcoholism is a contributing factor material to the determination of disability. If the SSA determines that the remaining limitations are disabling, the claimant will be deemed disabled independent of drug addiction or alcoholism and the SSA will find that drug addiction or alcoholism is not a contributing factor material to the determination of disability.

Case Law

First Circuit

In Brown v. Apfel, 71 F. Supp.2d 28 (D.R.I. 1999), the court held that substantial evidence supported the ALJ’s conclusion that the claimant’s alcoholism was a contributing factor material to a finding of disability. Id.at 36-37. The court reasoned that even the examining physician could separate the effects of his alcoholism from his other conditions, so that his conditions were not “inextricably intertwined.” Since the claimant would not be disabled absent his alcoholism, the ALJ’s finding that alcoholism was a contributing factor material to the finding of disability was entirely appropriate. Id.at 40.

Second Circuit

In remanding a case, a New York district court directed that the ALJ to properly evaluate the effect that the claimant’s alcohol abuse has on her impairments, if any. O’Halloran v. Barnhart, 328 F. Supp.2d 388, 395 (W.D.N.Y. 2004). The court found that the ALJ erred in stating that he could not consider “any limitations associated with the claimant’s past history of alcohol abuse, since such limitations may have provided the sole basis for a finding of ‘disabled,’ given that the lack of any limitations associated with the claimant’s other impairments do not provide any support for a finding of ‘disabled.’” Id.at 395-95. As the court explained, the Commissioner must evaluate which of a disabled person’s current physical and mental limitations would remain if a claimant stopped using alcohol, and then determine whether those remaining limitations would be disabling and “[i]f her remaining limitations would still be disabling, then alcoholism will not be a contributing factor material to the determination of disability and the disabled person will be eligible for benefits.” Id. at 395, citing 20 C.F.R. § 404.1535(b)(2) Accordingly, the court concluded:

when proceeding through the five-step sequential evaluation, the ALJ should consider all of the effects of plaintiff’s impairments, including those associated with alcoholism or drug addiction, if any. Only after finding that plaintiff is disabled should the ALJ determine which of these impairments would remain if plaintiff stopped using alcohol.

Id.

In Frederick v. Barnhart, 317 F. Supp.2d 286 (W.D.N.Y. 2004), the court held that the ALJ’s finding that alcohol was a contributing factor material to the finding of disability was based on legal error and the ALJ erred by failing to determine which of the claimant’s “mental impairments would still exist if she stopped using alcohol and by failing to determine whether these limitations would be disabling.” Id. at 293. The court further held that the application of the correct legal standards compelled the conclusion that the claimant would still be disabled as a result of mental impairments even if she stopped using alcohol, and remanded for an award of benefits. Id. The court noted that the ALJ failed to cite to evidence in the record which supported his conclusion that if the claimant stopped using alcohol, “her other obvious mental impairments would somehow evaporate” or that the claimant’s “mental functional limitations would significantly improve if she no longer used alcohol.” Id. at 299. The court further found that the ALJ’s conclusions conflicted with the medical records from the claimant’s treating sources that indicated that the claimant’s primary diagnoses were “serious mental illnesses with a secondary issue concerning alcohol abuse, an abuse frequently tied to plaintiff’s efforts to alleviate the symptoms of her mental disease.” Id.

In White v. Comm’r of Soc. Sec., 302 F. Supp.2d 170 (W.D.N.Y. 2004), the court held that the ALJ erred in finding that the claimant’s alcohol dependence was a contributing factor material to the claimant’s disability because he failed to explain sufficiently the basis for his decision and did not correctly assess the claimant’s credibility. Id. at 174. The court noted that the ALJ did not cite to any record evidence which supported his conclusion regarding the effects of the claimant’s alcoholism on his mental impairments. Id. at 174. The court rejected the Commissioner’s request for a remand so that the ALJ could have another opportunity to state the basis for his decision and, instead, remanded for the payment of benefits. Id. The court noted that the Commissioner already had an opportunity to correct this error but “choose not to do so when the Appeals Council summarily denied plaintiff’s request for review” and, further, upon consideration of all of the relevant evidence and the application of the proper legal standards, “substantial evidence exists that plaintiff’s disabling mental impairments would continue absent plaintiff’s alcohol dependence.” Id.

In Downs v. Apfel, 9 F. Supp.2d 230 (W.D.N.Y. 1998), the court held that since the ALJ did not evaluate the claimant’s alcohol abuse or dependence according to this standard, remand was required to afford the claimant “an opportunity to demonstrate that he would have been disabled if he had stopped using alcohol.” Id. at 234.

In Williams v. Callahan, 30 F. Supp.2d 588 (E.D.N.Y.1998), the court reversed and remanded where the evidence showed that the claimant had a pre-existing mental impairment before she lost her job and before she began to use crack, as demonstrated by her treatment for manic-depression by the Postal Service psychiatrist. Id. at 593. The court noted that this suggested that the claimant suffered from a mental condition independent of and pre-existing to her drug abuse. Id. at 594.

In a footnote, a New York district court acknowledged that if the claimant’s alcohol abuse had been a contributing factor material to the disability determination, the court’s review of that decision would have ceased, given the enactment of the Contract With America Advancement Act of 1996. Dombrowski v. Chater, 960 F. Supp. 558, 568 n. 1 (N.D.N.Y. 1997).

The court held that the claimant was precluded from being awarded disability insurance benefits based upon his alcohol and drug abuse problems pursuant to the recent amendments to statutory provisions governing drug and alcohol disability benefits. Connor v. Chater, 947 F. Supp. 56, 62 (N.D.N.Y. 1996).

In Porter v. Chater, 982 F. Supp. 918 (W.D.N.Y. 1997), the claimant wrote a letter to the Appeals Council in which he argued that his substance abuse was a contributing factor that was not properly considered by the Commissioner in his decision. Id. at 921. In light of this letter, the court found that there was little question that the claimant’s alcohol abuse would be material to the disability issue.Id. at 922, citing 20 C.F.R. § 404.1535. See also Orbaker v. Apfel, 70 F. Supp.2d 291, 295-96 (W.D.N.Y. 1999) (holding that the ALJ’s decision that the claimant’s alcoholism was a contributing factor material to the determination of the claimant’s disability was supported by substantial evidence, and that the record supported the ALJ’s conclusion that many of his periods of depression were the product of his alcohol abuse and that they abated significantly when he abstained from alcohol).

Third Circuit

A Pennsylvania district court held that where alcoholism was an issue, an ALJ must identify at least some medical evidence supporting the conclusion that a claimant no longer would be disabled if he or she stopped drinking or taking drugs. Sklenar v. Barnhart, 195 F. Supp.2d 696, 700 (W.D. Pa. 2002). In this case, the court found that none of the medical evidence identified by the ALJ was sufficient to support his finding that the claimant would not be disabled if she quit drinking. Id. at 703. To the contrary, nearly every medical opinion of record contained diagnoses of alcohol abuse and mental impairments, with no consideration of whether or how the cessation of alcohol consumption would impact the claimant’s limitations. Id.at 703-704.

Fourth Circuit

In Mitchell v. Commissioner of the Soc. Sec. Admin., 182 F.3d 272 (4th Cir. 1999), cert. denied, 528 U.S. 944 (1999), the claimant challenged the constitutionality of the SSA’s provisions prohibiting a claimant from receiving benefits if alcoholism was a contributing factor material to such determination. Id.at 273. The Fourth Circuit held that the challenged provisions did not violate equal protection principles, since they were rationally related to legitimate government interest in discouraging alcohol and drug abuse and were “rationally related to this purpose in that it withholds social security benefits from those who likely would use the funds to purchase alcohol or drugs.” Id.at 275.

A Virginia district court agreed with the claimant that the ALJ failed to properly evaluate the impact of alcoholism on the claimant’s ability to work. McGhee v. Barnhart, 366 F. Supp.2d 379, 389 (W.D. Va. 2005). The ALJ had found that the claimant’s only severe impairments were alcohol and drug abuse and then proceeded to evaluate the impact of his alcoholism within the five-step analysis. The court noted that the under the regulations, “an ALJ must first conduct the five-step disability inquiry without considering the impact of alcoholism or drug addiction.” Id. Only if the ALJ finds that the claimant is disabled and there is “medical evidence of [his or her] drug addiction or alcoholism,” should the ALJ proceed to determine whether the claimant “would still [be found] disabled if [he or she] stopped using alcohol or drugs.” Id., citing 20 C.F.R. § 404.1535. “In other words, if, and only if, an ALJ finds a claimant disabled under the five-step disability inquiry, should the ALJ evaluate whether the claimant would still be disabled if he or she stopped using drugs or alcohol.” Id. In this case, the ALJ erred in not first finding that the claimant was disabled under the five-step disability analysis before evaluating the impact of his alcoholism on that disability. Id.

In McCall v. Apfel, 47 F. Supp.2d 723 (S.D. W.Va. 1999), the claimant asserted that the Commissioner’s decision was based on an erroneous determination that the claimant’s alcoholism was a present impairment which was a contributing factor material to his disability. Id. at 727. In McCall, a medical expert testified at the claimant’s hearing that if he was no longer drinking, his impairments met the requirements of a listed impairment, but she had reservations regarding whether he had, in fact, stopped drinking. Id.at 729. Based, in part, on this testimony, the ALJ concluded that the claimant’s alcoholism was not in remission and that it was a contributing factor to his disability, warranting the termination of his benefits under the new law. Id. at 729-30. The court held that the ALJ was required to determine whether or not the claimant was still drinking. Id.at 731.

Fifth Circuit

The Fifth Circuit held that the retroactive application of the new drug and alcohol amendments that barred the receipt of benefits when drug or alcohol addiction is a material contributing factor, was constitutional. Brown v. Apfel, 192 F.3d 492, 496-97 (5th Cir. 1999). As a matter of first impression, the court further held that the claimant bears the burden of proof to establish that drug or alcohol addiction is not a contributing factor material to her disability. Id.at 497-98. The Fifth Circuit found that the claimant failed to carry her burden of proof, but noted that she had no notice or knowledge that she would be required to carry this burden until the day of the hearing. Id.at 498. Since the court had not yet considered the issue, the Fifth Circuit vacated the portion of the district court’s opinion that held that substantial evidence supported the ALJ’s finding that alcohol abuse was a contributing factor material to her disability, and remanded the case for further evidentiary gathering. Id. at 499.

In Doherty v. Barnhart, 285 F. Supp.2d 883 (S.D. Tex. 2003), the court held that the ALJ’s finding that the claimant’s alcoholism was a contributing factor material to the disability determination and precluded him from receiving Social Security benefits during the closed period at issue, between July 15, 1996 and November 4, 1997, was supported by substantial evidence. Id.at 885. The court also held that the ALJ’s determination that the claimant’s physical and mental impairments had improved in November 1997, following his cessation of drinking. Id. at 896.

Sixth Circuit

In Williams v. Barnhart, 338 F. Supp.2d 849 (M.D. Tenn. 2004), the court held that the ALJ failed to follow the regulatory procedure for evaluation of drug addiction, established in 20 C.F.R. § 404.1535. Id. at 862. The court explained that “[t]o find that drug addiction is a contributing factor material to the determination of disability without first finding the claimant disabled, as the ALJ did here, is to put the cart before the horse.” Id. at 862-63, citing Drapeau v. Massanari, 255 F.3d 1211, 1214-15 (10th Cir. 2001) (holding that “the implementing regulations make clear that a finding of disability is a condition precedent to an application of § 423(d)(2)(C)” and the “Commissioner must first make a determination that the claimant is disabled” before making a determination whether the claimant would still be found disabled if he or she stopped abusing drugs”); Brueggemann v. Barnhart, 348 F.3d 689, 693-95 (8th Cir. 2003) (noting that 20 C.F.R. § 404.1535 “plainly requires the existence of a ‘current disability determination’ before the substance use disorders are even considered”). The court further observed that the failure of the ALJ to cite 20 C.F.R. § 404.1535 or § 416.935 “reflect his misunderstanding of the procedure to be followed in analyzing the impact of plaintiff’s drug addiction.” Id.at 863. Finally, the court rejected the Commissioner’s argument that the ALJ’s failure to cite to the regulations was “inadvertent and, at worst, a harmless error . . . .” Id. at 863.

In Davis, the court found that no evidence existed that the claimant’s low intellectual finding (IQ score of less than 59) was caused or exacerbated by drug or alcohol use and therefore alcohol and drug abuse was found not to be a contributing factor to the claimant’s disability.Davis v. Apfel, 133 F. Supp.2d 542, 549 (E.D. Mich. 2001).

Seventh Circuit

The Seventh Circuit held that in order to ascertain whether alcoholism or drug addiction is a contributing factor material to disability, the SSA must consider whether the claimant would be found disabled if his alcohol or drug use ceased. Maggard v. Apfel, 167 F.3d 376, 379 (7th Cir. 1999),citing 20 C.F.R. §§ 404.1535, 416.935. In Maggard, the claimant argued that the amendments to the Social Security Act regarding alcoholism and drug addiction applied only to those for whom the onset of disability occurred after the date of enactment. The court noted that while the ALJ did not consider these amendments because they were enacted after his decision, he regarded the claimant’s alcoholism as one of the contributing factors to his inability to work. Thus, the court found that the claimant failed to establish entitlement to disability benefits. The court explained that had the ALJ found the claimant to be disabled and had he included alcoholism as a contributing factor to that determination, then the court would have had to consider whether the amendments made the ALJ’s reliance on the claimant’s alcoholism improper. Id. However, since the ALJ found the claimant not disabled, the court’s review on appeal was limited to whether the ALJ’s decision was based upon substantial evidence. Id.

An Illinois district court noted that the amendments to 42 U.S.C. § 423(d)(2)(C) were promulgated with the dual purpose of “conserving limited resources while promoting rehabilitative behavior among substance abusers.” Stengel v. Callahan, 983 F. Supp. 1154, 1156, 1157, 1163 (N.D. Ill. 1997), citing P.L. 104-121 § 103 (1996). The court explained that Congress decided that payment of disability benefits to alcoholics and drug addicts encouraged such recipients to continue their addictions in order to keep receiving benefits and that the amendment operates to deter drug and alcohol abuse by “rerouting federal funds” from disability benefits awards to state sponsored drug and alcohol treatment. Id., citing H.R. Rep. 104-379, at 20, and P.L. No. 1040121, § 105(d) (1996). The court explained further that:

The legislative history indicates that Congress did not intend to terminate benefits to those who have qualifying disabilities in addition to a substance abuse problem. For instance, the House Committee Report notes that ‘[i]ndividuals with drug addiction and/or alcoholism who have another severe disabling condition (such as AIDS, cancer, cirrhosis) can qualify for benefits [under the new law] based on that disabling condition.

Id.at 1165, quoting H.R. Rep. 104-379, at 19 (1996). In Stengel, the court held that the amendment “is not so ‘wholly unrelated to the objective of the statute’ as to deny [the claimant] due process and equal protection under the laws,” and consequently rejected the claimant’s due process and equal protection challenges. Id. at 1167.

A district court in Indiana noted that since the record was not clear as to whether or to what extent the claimant’s drug use contributed to her mental impairments, and that such an assessment was crucial to the determination of whether the claimant was entitled to SSI benefits, remand was warranted. Jones v. Apfel, 997 F. Supp. 1085, 1093 (N.D. Ind. 1997), citing 20 C.F.R. § 416.935(b)(1). The court confirmed that where there was a question concerning whether alcoholism or drug addiction is a “contributing factor” material to a finding of disability, the determination turns on whether the claimant has a disability independent of the alcoholism or drug addiction. Id. See also Davis v. Chater, 952 F. Supp. 561, 568 (N.D. Ill. 1996) (since it was not known from the record whether non-alcohol-related factors rendered the claimant unable to work (independent of the alcohol abuse), and since such determinations were crucial in assessing the claimant’s entitlement to benefits under the newly-enacted legislation, remand was required).

An Illinois district court noted that it was unnecessary to determine whether the new law regarding alcohol or drug addiction applied, since the court upheld that ALJ’s finding that, even if substance abuse could be disabling in theory, the claimant’s actual involvement with drugs and alcohol was not. Johnson v. Chater, 969 F. Supp. 493, 507 (N.D. Ill. 1997).

Eighth Circuit

The issue presented in Brueggemann v. Barnhart, 348 F.3d 689 (8thCir. 2003) was how Social Security regulations concerning alcohol abuse should be applied. Id.at 691. The court held that the ALJ erred at step four of the sequential evaluation process in discrediting the evidence from the claimant’s treating physician based on the ALJ’s conclusion that alcohol use could not form the basis for disability. Id.at 693. The court noted that the ALJ failed to cite 20 C.F.R. § 404.1535 anywhere in his decision, and that this failure was not a mere drafting oversight, as the Commissioner claimed, but accurately reflected his failure to follow its procedures. Id.at 693-94. This regulation requires the ALJ to first determine whether the claimant was disabled. Id.at 694. The ALJ is required to reach this determination initially, using the standard five-step sequential evaluation process, without segregating out any effects that might be due to substance use disorders, and the determination must be based on substantial evidence of the claimant’s medical limitations without deductions for the assumed effects of substance use disorders. Id.In cases where the “gross total of a claimant’s limitations, including the effects of substance use disorders, suffices to show disability, then the ALJ must next consider which limitations would remain when the effects of the substance use disorders are absent.” Id. at 694-95. As the Eighth Circuit summarized:

Only after the ALJ has made an initial determination that 1) Brueggemann is disabled, 2) determined that drug or alcohol use is a concern, and 3) obtained substantial evidence on the record showing what limitations would remain in the absence of alcoholism or drug addiction, may he then reach a conclusion on whether Brueggemann’s substance use disorders are a contributing factor material to the determination of disability.

Id.at 695. The court also noted that if the ALJ is unable to determine whether a substance use disorder is a contributing factor material to the claimant’s disability, the claimant’s burden is met and an award of benefits must follow, in accordance with Social Security Administration Emergency Teletype, No. EM-96-94 at Answer 29 (Aug. 30, 1996). Id. at 693. As the court was unable to determine whether the ALJ would have reached the same decision denying benefits, even if he had followed the proper procedure by giving due weight to the medical evidence without factoring in the claimant’s alcoholism, the legal error was not harmless. Id.at 695-96.

The Eighth Circuit noted that it is the claimant’s burden to show that alcoholism or drug addiction is not material to the finding of disability. Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000). As reiterated by the Eighth Circuit, “[t]he focus of the inquiry is on the impairments remaining if the substance abuse ceased, and whether those impairments are disabling, regardless of their cause.” Id.at 903, citing 20 C.F.R. § 404.1535(b)(1); Jackson v. Apfel, 162 F.3d 533, 537 (8th Cir. 1998). In Pettit, the claimant argued that he stopped drinking in 1994, long before the ALJ found that he suffered from depression, which met the requirements of Listing 12.04.Id.at 903. The court noted that there was evidence that the claimant “stopped drinking and yet continued to suffer from depression,” as he demonstrated symptoms of depression long after he entered treatment for alcoholism and received medication and therapy for his depression. Id.The court pointed out that the ALJ’s decision predated the more recent holding in Jackson, 162 F.3d at 535, 537, “that even if long-term alcohol abuse causes a disability, alcoholism will not be found ‘material’ to the finding of disability if the disability remains after the claimant stops drinking.” Id. at 904. Consequently, on remand, the court ordered the ALJ to address the claimant’s allegation that he was disabled by depression, stating:

[The claimant] will have the burden of showing that alcoholism is not material to his disability. He may thus attempt to show that, absent drinking, his depression meets the requirements of § 12.04, and, if he is unable to do so, he must establish that, absent drinking, his depression prevents him from performing his past relevant work. If he does so, the burden then shifts to the Social Security Administration to show that if [the claimant] does not drink, he can perform other jobs available in the national economy.

Id.at 904, citing Cox v. Apfel, 160 F.3d 1203 (8th Cir. 1998).

The court reversed the ALJ’s decision denying benefits to a claimant where medical reports stated that the claimant had not been drug free her entire adult life. Hildebrand v. Barnhart,302 F.3d 836, 839 (8th Cir. 2002). The court reasoned that such reports did not support the ALJ’s decision that the claimant would not be disabled independent of her drug addiction.Id.

In Jackson v. Apfel, 162 F.3d 533 (8th Cir. 1998), the ALJ found that when alcohol was eliminated from the claimant’s life, his mental impairment was not severe. Id.at 537. The court noted that a physician’s conclusion that the claimant was depressed was based on his belief that the claimant remained chemically dependent as the physician opined the claimant would “be able to do simple tasks and carry them out effectively, if he could remain sober.” Id. at 538.As no other evidence of record established “a mental problem . . . which would impact [the claimant’s] ability to perform basic tasks and make decisions required for daily living,” and the claimant himself testified that it was his physical condition, not his alcoholism, which prevented him from working, the court concluded that the ALJ’s findings were consistent with 20 C.F.R. § 404.1535. Id.

In Fastner v. Barnhart, 324 F.3d 981 (8th Cir. 2003), the Eighth Circuit stated that it did not need to resolve the claimant’s claim that the ALJ failed to apply the correct legal standard with regard to his alcohol abuse because the ALJ incorporated the claimant’s alcohol abuse as an impairment into the disability determination, which resulted in a finding that he was not entitled to benefits. Id.at 986. As the court explained:

Generally, a determination under [42] § 423(d)(2)(C)’s implementing regulations, 20 C.F.R. §§ 404.1535(b) and 416.935(b), is only necessary if the ALJ has found that the sum of that individual’s impairments would otherwise amount to a finding of disability. Here, no such initial determination that Fastner would otherwise be entitled to disability was made. Accordingly, the ALJ’s determination with regard to § 423(d)(2)(C) was superfluous, and Fastner’s argument is moot.

 

Id.

 

In Rehder v. Apfel, 205 F.3d 1056 (8th Cir. 2000), the court declined to “construe the term ‘medical evidence’ in § 404.1535 as necessitating a medical diagnosis of substance abuse disorder,” as encouraged by the claimant, and concluded that there was sufficient medical evidence of the claimant’s drug use to support the ALJ’s decision, as that term is defined in 20 C.F.R. §§ 404.1512 and 404.1528. Id. at 1059. Where the claimant’s medical records contained several substance-related diagnoses, and laboratory tests confirmed substance abuse at least once during the relevant period, the court held that sufficient medical evidence of the claimant’s drug use was presented to support the ALJ’s finding that drug addiction was a contributing factor material to determination of disability, thus disqualifying the claimant from receiving benefits. Id.

The Eighth Circuit held that substantial evidence supported the ALJ’s findings that the claimant had severe impairments but that alcoholism or drug addiction was a contributing factor to the determination that she was disabled.Slater v. Barnhart, 372 F.3d 956, 957 (8th Cir. 2004). The court noted that the record was “filled with evidence of drug abuse, alcohol abuse, and drug-seeking behavior, including lying and manipulating others to obtain prescription drugs, self-medicating and failing to follow recommended treatments, drinking six bottles of beer and a bottle of wine daily, and overdosing.” Id.

The Eighth Circuit found no record evidence to rebut the ALJ’s finding that “but for alcoholism,” the claimant had no severe impairments, and that there was no medical evidence to refute the ALJ’s finding that the claimant’s seizure disorder, and heart and respiratory conditions were controlled by medication.Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). The Eighth Circuit relied on Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999), in holding that it was the claimant’s burden to prove that drug or alcohol addiction is not a contributing factor material to the disability.Id. The court noted that the claimant, who was represented by counsel, failed to produce any medical evidence to support his claim for disability or his contention that alcoholism did not contribute materially to his disability, such as requesting that the ALJ order additional consultative examinations. Id.

In Freeman v. Apfel, 208 F.3d 687 (8th Cir. 2000), the claimant argued that the ALJ’s decision that he would not have been disabled if he stopped using alcohol was not supported by the record.

Id. at 690. However, the court noted that the claimant was not diagnosed with psychosis during the relevant time period and appeared to be able to socialize, engage in sports, work, and take care of himself when he was not abusing drugs.Id. at 691. Thus, the court held that the ALJ properly did not accord controlling weight to the claimant’s treating physician because the treating physician’s evidence did not pertain to the claimant’s condition during the relevant period and was inconsistent with other substantial evidence that did pertain to the relevant period. Id.

The Eighth Circuit held in Estes v. Barnhart,275 F.3d 722 (8thCir. 2002) that substantial evidence “throughout the record clearly established the interrelation between the claimant’s claimed disabilities and her abuse of alcohol.” Id.at 724. Thus, the ALJ “reasonably concluded” that the claimant would not be disabled if she stopped using alcohol. Id. at 726.

A Missouri district court held that the ALJ did not adequately evaluate the claimant’s substance abuse pursuant to 20 C.F.R. § 404.1535(b). Welch v. Barnhart, 355 F. Supp.2d 1008, 1017-18 (E.D. Mo. 2005). The court noted that the ALJ made findings that the claimant’s alcohol and drug dependence were not disabling and found that a portion of both his medical and physical limitations are due to substance abuse and then concluded that “[e]ven if his mental limitations were disabling, he would be precluded from receiving disability benefits . . . .”Id. at 1019. The ALJ then stated that the law required him to determine the claimant’s RFC absent considering the effects of alcohol and drug use. Id. In holding that the ALJ’s analysis did not accurately reflect the Social Security regulations or Eighth Circuit precedent, the court stated:

The ALJ is required to make findings pursuant to the five-step regulatory framework (20 C.F.R. §§ 404.1520, 416.920), taking into account plaintiff’s alcohol and drug dependence when assessing his RFC, and ability to engage in past, relevant work or other work in the national economy. See Fastner v. Barnhart, 324 F.3d 981, 985 (8th Cir. 2003); Woods v. Barnhart, 2004 WL 1558794, No. 03-2592, slip op. at *8 (D. Kan. July 12, 2004) (“For purposes of step five, the ALJ is required to determine, as a threshold matter, whether plaintiff’s mental impairment is disabling, without considering whether his alcoholism or substance abuse contribute to the impairment.”).

Id. The court specifically rejected the Commissioner’s argument that the ALJ did consider all the claimant’s impairments, including the effects of substance abuse, determining he was not under a disability which obviated the need to evaluate whether the claimant was disabled despite substance use. “A review of the ALJ’s opinion does not reveal any evidence he did, in fact, include the effects of substance abuse in his initial disability assessment” which was “further buttressed by the ALJ’s belief that he was bound by regulations to determine plaintiff’s RFC without considering the effects of alcohol and drug consumption.” Id.

There are several district court cases in the Eighth Circuit discussing the law pertaining to drug and alcoholism. SeeWesterfield v. Apfel, 75 F. Supp.2d 970, 975 (S.D. Iowa 1999) (holding that the ALJ’s finding that alcoholism and drug addiction was a contributing factor to the determination of the claimant’s disability was not supported by substantial evidence, reasoning that regardless of whether or not the claimant had stopped drinking and using drugs, the loss of his small intestine rendered him disabled, and remanding for an award of benefits); Luther v. Chater, 938 F. Supp. 538, 541 n.1 (S.D. Iowa 1996) (remanding case with instructions to consider recent amendments to the Social Security Act pertaining to alcoholism or drug addiction); Boehm v. Chater, 969 F. Supp. 31, 34 (S.D. Iowa 1997) (finding that the record lacked substantial evidence to support the Commissioner’s determination that the claimant’s drug addiction was a contributing factor material to the determination of disability, as the ALJ failed to indicate whether, given her other impairments, the claimant would still be disabled if she stopped using drugs); Richards v. Chater, 964 F. Supp. 1337, 1348 (E.D. Mo. 1997) (holding that given the lack of evidence in the record showing that the claimant exhibited certain debilitating traits prior to her daily use of drugs and her diagnosis of drug dependence, the ALJ’s determination that the claimant’s drug use was material to his finding of disability was supported by substantial evidence on the record); Sailors v. Barnhart, 292 F. Supp.2d 1190, 1195 n. 9 (D. Neb. 2004) (noting that even though the ALJ found a history of alcoholism, given the claimant’s testimony that he had stopped drinking 6 months before the hearing, the ALJ “evidently (and very charitably) concluded that Sailors was not disqualified from benefits as a categorical matter under 42 U.S.C. § 423(d)(2)(C)”); Molloy v. Apfel, 77 F. Supp.2d 1009, 1013 (S.D. Iowa 1999) (finding that there was substantial evidence for the ALJ’s conclusion that the claimant’s alcoholism was a contributing factor to any disability determination as the facts indicated that her alcoholism was not distinct from her disabilities); Matney v. Apfel, 48 F. Supp.2d 897, 902 (W.D. Mo. 1998) (rejecting the claimant’s argument that the ALJ erred in not considering what mental limitations would remain if he stopped drinking as the ALJ properly determined the claimant’s RFC in the absence of drug and alcohol addiction).

Ninth Circuit

The Ninth Circuit held that the “key factor . . . in determining whether alcoholism or drug addiction is a contributing factor material to the determination of disability” is whether an individual would still be found disabled if he or she stopped using alcohol or drugs. Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1997), citing 20 C.F.R. § 404.1535(b)(1).The NinthCircuit reversed the district court’s denial of benefits which was based on the conclusion that the claimant’s mental problems were “intertwined and exacerbated by longstanding substance abuse,” reasoning that in so doing:

the court failed to distinguish between substance abuse contributing to the disability and the disability remaining after the claimant stopped using drugs or alcohol. The two are not mutually exclusive. Just because substance abuse contributes to a disability does not mean that when the substance abuse ends, the disability will too.

Id. at 1245.

The Ninth Circuit held in Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001) that in evaluating whether a claimant’s alcoholism or drug addiction is material to a disability determination, the ALJ must first conduct the five-step sequential disability inquiry without separating out the impact of his alcoholism or drug addiction. Id.at 955. In this case, the ALJ prematurely evaluated the impacted of the claimant’s alcoholism, warranting remand. Id.at 951.

In Ball v. Massanari, 254 F.3d 817 (9th Cir. 2001), the Ninth Circuit held that an “ALJ is required to conduct a ‘differentiating’ analysis to separate the alcoholism and drug-related impairments from the unrelated physical impairments only if the record indicates that the non-substance-abuse-related impairments are ‘severe’ and therefore pass step 2 of the sequential evaluation process.” Id. at 823.

A California district court discussed whether the ALJ properly analyzed the claimant’s disability claim in light of his alcoholism. Lindsay v. Barnhart, 370 F. Supp.2d 1036, 1044 (C.D. Cal. 2005). The court held that the ALJ committed legal error in failing to consider whether the claimant was disabled without removing his “alcoholism from the equation.” Id.

In Saltzman v. Apfel, 125 F. Supp.2d 1014 (C.D. Cal. 2000), the claimant appealed the Commissioner’s termination of his disability benefits effective January 1, 1997, based on his alleged substance abuse. Id.at 1016. The court held that instead of considering whether the claimant’s drug abuse was a “contributing factor” to his mental condition, “the ALJ applied the wrong legal standard and evaluated plaintiff’s case as if it were a new claim for disability benefits.”Id.at 1019. The court further held that the Commissioner’s determination that the claimant was not disabled, as of January 1, 1997, “is supported by absolutely no evidence.” Id.at 1020 (emphasis in original). Thus, the court concluded that since “there is no evidence in the record to rebut the presumption of [the claimant’s] continuing disability and absolutely no evidence to support the Commissioner’s termination of [the claimant’s] benefits,” reversal and an order to reinstate the claimant’s disability benefits as of January 1, 1991, was warranted.Id.

The issue presented in Clark v. Apfel, 98 F. Supp.2d 1182 (D. Or. 2000) was whether the court should remand the case for further development or an award of benefits given the Commissioner’s concession that the ALJ failed to follow an internal memorandum from the Social Security Administration regarding drug and alcohol disorder. Id.at 1185. Given the ALJ’s finding that it was impossible to separate the effects of the claimant’s long term polysubstance dependence and abuse from his other possible mental disorders, the court held that the ALJ should have found, in accordance with an Emergency Teletype, that the addictions were not material to his previous finding of disability. Id. The court remanded for an award of benefits. Id. at 1185-86.

In Bousquet v. Apfel, 118 F. Supp.2d 1049 (C.D. Cal. 2000), the ALJ found that the claimant suffered from an amphetamine-induced psychotic disorder which was a “contributing factor material to the determination of disability.” Id. at 1051-52. The claimant subsequently reapplied for disability insurance benefits, and the Commissioner thereafter awarded benefits due to “anxiety, auditory hallucinations, paranoia, poor concentration and sleep disturbance” as of July 26, 1997, the first day following the date of the ALJ’s prior unfavorable decision. Id. at 1052. The court held that the ALJ failed to provide legally sufficient reasons for rejecting the opinion of the claimant’s treating physician that his disability was caused by schizophrenia, and improperly credited the non-examining medical expert’s opinion that the claimant’s impairments were due to an amphetamine-induced psychotic disorder. Id. at 1059. As it was not disputed that the claimant’s impairments were disabling and the only was “whether plaintiff’s impairments would have persisted if he stopped using drugs,” and given the fact that there was no evidence in the record that would justify rejecting the diagnosis of schizophrenia, the court determined that there were no outstanding issues to be resolved and remanded for an award of benefits.Id.

A California district court explained that pertinent records clearly established that the claimant was diagnosed with several mental conditions, “including post-traumatic stress disorder, personality disorder, and organic mood disorder,” and that these conditions were not necessarily the result of the claimant’s alcohol dependency. Hoffman v. Halter, 140 F. Supp.2d 1056, 1061 (C.D. Cal. 2001). Thus, the court held that:

To ignore and, in essence, implicitly reject evidence of plaintiff’s mental limitations is legal error, Smolen v. Chater, 80 F.3d 1273, 1286 (9thCir. 1996), and, further, renders the Commissioner’s decision to terminate plaintiff’s disability benefits unsupported by substantial evidence.

Id. at 1061-62.

In Hoffman v. Halter, 140 F. Supp.2d 1056 (C.D. Cal. 2001), the court held that the ALJ’s determination that the claimant would not be disabled if he stopped using alcohol was not supported by substantial evidence.Id. at 1060. Further, in making this determination, the ALJ failed to apply the proper legal standard and specifically failed to address plaintiff’s mental or psychiatric limitations. Id.

Tenth Circuit

The Tenth Circuit held in Grogan v. Barnhart, 399 F.3d 1257, 1266 (10th Cir. 2005) that the ALJ failed to follow the prescribed method for considering whether the claimant’s drug use could be considered a contributing factor to his disability in finding that the claimants ability to function prior to his date last insured was due to his illegal drug use. Id.at 1266. The court explained that “[t]o dismiss an application on the basis that Grogan’s drug addiction was a contributing factor material to the determination his disability, the ALJ had to find that, if Grogan had stopped using drugs or alcohol, he would not have been disabled.”Id., citing 20 C.F.R. § 416.935. However, the claimant’s testimony indicated that he remained mentally ill even after he reduced the number of street drugs he was taking around the relevant time period and that his depression had always been separate from the effects of drugs or alcohol. Id.

In McGoffin v. Barnhart, 288 F.3d 1248 (10th Cir. 2002), the ALJ found that the claimant’s mental impairments met a listed impairment, but found that the claimant was able to voluntarily control her substance abuse and thus, it was a “contributing factor material to her disability determination.” Id.at 1251. The Tenth Circuit held that the ALJ erred in rejecting the assessment of the claimant’s treating physician, in part, because it distinguished between the claimant’s mental illness and her substance abuse while the prior medical reports rarely did so, as this fact did not preclude the treating physician from making this distinction. Id.at 1252-53.

The court cited to the SSA teletype which stated that “‘[w]hen it is not possible to separate the mental restrictions and limitations imposed by [drug and alcohol abuse] and the various other mental disorders shown by the evidence, a finding of ‘not material’ would be appropriate,” noting that “the agency directed that if the effects of a claimant’s mental illness could not be separated from the effects of substance abuse, the abuse would be found notto be a contributing factor material to the disability determination.” Id.at 1253.

The Tenth Circuit held in Drapeau v. Massanari, 255 F.3d 1211 (10thCir. 2001), that the ALJ failed (1) to ascertain whether the claimant was disabled prior to finding that alcoholism was a contributing factor material thereto; and (2) to consider whether the claimant’s alcohol abuse was a “contributing factor” to either her post-poliomyelitis or her dysphagia. Id. at 1214-15. Consequently, the Tenth Circuit concluded that there was no evidence of record to support the ALJ’s finding that the claimant’s alcohol abuse was a “material factor” contributing to her disabilities. Id.at 1215.

In Johnson-Winborn, the court stated that it was unclear whether the ALJ assessed evidence of the claimant’s addiction to prescription drugs since he did not discuss whether he found it to be material. Johnson-Winborn v. Apfel, 106 F. Supp.2d 1144, 1147 (D. Kan. 2000). However, Congress passed legislation which eliminated alcoholism or drug addiction as a basis for obtaining Social Security benefits. This legislation provides that “‘[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner’s determination that the individual is disabled,’” explaining that drug addiction is material if the individual would not be found disabled if the drug use were to cease. Id.,quoting Pub.L. No. 104-121 § 105(a)(1) and citing 20 C.F.R. §§ 404.1535, 416.935.

In Salazar v. Barnhart, 344 F. Supp.2d 723 (D.N.M. 2004), the court held that there was substantial evidence in the record to support the ALJ’s findings that the claimant’s polysubstance abuse was a factor material in the determination of her disability and/or that she would not be disabled but for the chronic polysubstance abuse. Id. at 735. The court noted that the medical record “is replete with references that alcohol and drug abuse were ‘factors material’ in Salazar’s self destructive behavior, suicide attempts and in her inability to hold a job” and “[h]er health care providers and/or evaluators observed and noted a connection between her destructive behavior and substance abuse.” Id. The court further found that the medical evidence provided additional support for the ALJ’s determination that drug addiction and alcohol were contributing factors material to his determination of nondisability, stating:

a key factor in determining whether drug addiction and alcoholism are contributing factors material to the determination of disability is whether Salazar would have been disabled if she stopped using drugs or alcohol. 20 C.F.R. § 416.935(b)(1). Here, the ALJ observed that when Salazar abstained from alcohol or drug abuse and/or followed treatment plans, she improved. She was more hopeful, less depressed, and her suicidal ideation evaporated. If she stayed off alcohol, she did pretty well. Thus, when Salazar abstained from alcohol and drugs and was under treatment, her coping abilities and mental outlook improved.

Id. at 736.

Eleventh Circuit

In Doughty, the claimant was denied benefits pursuant to the Contract with America Advancement Act of 1996, Pub. L. No. 104-121, 105(a)(1), (b)(1), 110 Stat. 847, 852, 853 (codified as amended at 42 U.S.C. § 423(d)(2)(C) (1997)), based on a finding that his alcoholism was a contributing factor material to the determination that he was disabled. Doughty v. Apfel, 245 F.3d 1274, 1275 (11th Cir. 2001). The Eleventh Circuit held, as a matter of first impression, that the claimant bears the burden of proving that his alcoholism or drug addiction is not a contributing factor material to his or her disability determination. Id.at 1276. In so holding, the court agreed with the Fifth Circuit’s reasoning inBrown v. Apfel, 192 F.3d 492 (5th Cir. 1999), which held that the claimant, and not the Commissioner, bears that burden. Id. at 1281.

The court also rejected the claimant’s assertion that a SSA emergency teletype required the ALJ to call a medical or psychological consultant or disability examiner to testify regarding the materiality issue, finding that the teletype does not impose a “new requirement upon the ALJ to seek a consultant’s opinion when making a materiality determination.” Id., citing Emergency Teletype, Office of Disability, Social Security Administration, “Questions and Answers Concerning DAA from July 2, 1996 Teleconference — Medical Adjudicators —ACTION,” August 30, 1996. The regulations only require a consultative examination “when necessary information is not in the record and cannot be obtained from the claimant’s treating medical sources or other medical sources.” Id., citing 20 C.F.R. § 404.1519a(b). As sufficient evidence supported finding that the claimant’s alcoholism was a contributing factor material to the disability determination, the Eleventh Circuit affirmed. Id.

A Florida district court noted that the Commissioner’s instructions regarding handling the “materiality” determination of drug and alcohol addiction state that the “[m]ost useful evidence that might be obtained in such cases is that relating to a period when the individual was not using drugs/alcohol.”Davis v. Apfel, 93 F. Supp.2d 1313, 1318 (M.D. Fla. 2000). The court held that since the medical evidence showed periods of psychiatric stability when the claimant was forced to abstain from drugs and alcohol, the ALJ’s finding that the claimant’s addiction was a contributing factor material to the determination of disability was supported by substantial evidence. Id.

D.C. Circuit

Based on the most recent record, the claimant did not meet the required level of severity of Listing 12.02 in order to qualify for SSI benefits due to an organic mental disorder stemming from alcohol and drug addiction. Parham v. Chater, 964 F. Supp. 432, 436 (D.D.C. 1997).