Unscrambling the Egg: Social Security Disability Law and Substance Use Disorders

By The Honorable David J. Agatstein*

As reported in this Journal nineteen years ago,¹ the Social Security Administration ("SSA") was slow to recognize drug addiction and alcoholism ("DAA"), as a disabling impairment. Eventually, however, in 1994, Congress undertook to address the issue by allowing payment of benefits, for a limited period, coupled with treatment. The Social Security Independence and Programs Improvement Act of 1994 ("SSIPIA")² provided that claimants for whom drug addiction or alcoholism was a contributing factor material to the determination of disability could receive benefits for a maximum of three years. Those claimants were required to undergo available treatment, which was to be monitored, and suspension or termination of benefits was prescribed for noncompliance. Past due benefits³ were to be paid in installments, and the need for a representative payee was presumed. Regulations implementing SSIPIA⁴ required claimants to "make progress in your treatment,"⁵ but assured them that "generally, you are not expected to pay for this treatment."⁶

In determining whether DAA was a material contributing factor, the regulations stated:⁷ "The key factor we will examine … is whether we would still find you disabled if you stopped using drugs or alcohol."

Only two years later the direction of the law was dramatically reversed. Congress enacted the Contract with America Advancement Act ("CAAA"),⁸ which became effective on March 29, 1996, and is still in force. CAAA states that: "An individual shall not be considered disabled .if alcoholism or drug addiction [is] a contributing factor material to the Commissioner’s determination that the individual is disabled." As explained by the Ninth Circuit Court of Appeals,⁹ the purpose of CAAA was "to discourage alcohol and drug abuse, or at least not to encourage it with a permanent government subsidy." CAAA’s impact on the SSA and, especially, the claimant community, was drastic.