Once you get to the point of appearing at a Social Security hearing, you may have waited months if not years from the date of your original application. Most of your dealings with social security have been through paperwork and over the phone. The hearing is your opportunity to tell an Administrative Law Judge (ALJ) face to face how your condition is impacting your life and ultimately your ability to work; therefore, it is important to make the best use of your time in your hearing. A significant part of that is being completely honest with the ALJ, especially about drug addiction and alcoholism.
The most important quality you bring to the hearing is your credibility. Your testimony can persuade the ALJ that you are in fact disabled. If the ALJ believes your testimony, your case has an increased chance of being awarded; however, if the ALJ has a reason to doubt your truthfulness, your chances decrease. It is more damaging to your case to lie about drug or alcohol use than to admit to it and maintain your credibility.
Each attorney makes a diligent effort to obtain up-to-date copies of your medical records. These records not only show objective evidence such as MRIs or X-rays, but any observations your doctors have made as you are being examined. This may include whether you can walk without assistance, how easily you can climb onto the examining table, and whether you appear to be intoxicated by drugs or alcohol. The doctors may also perform a urinalysis or blood test to screen for illegal drugs or alcohol. All of this is documented in the medical record and will be used as evidence during a hearing. Some ALJs will ask the claimant about the observation made in the medical record or drug testing directly, while others will “test” the claimant to see if they will be truthful about their drug use. It is best to be honest about drug use so that the issue can be addressed directly and the ALJ will be more likely to believe other aspects of your testimony.
The claimant has the burden of proof to show that the drug addiction or alcohol is not material to his or her disability. Brown v. Apfel, 192 F.3d 492 (5th Cir. 1999); Doughty v. Apfel, 245 F.3d 1274 (11th Cir. 2001). This means that you as the claimant, usually with the help of your attorney, have to show that the drug addition or alcoholism does not make a difference to the question of whether you are disabled. In other words, if you removed the drugs or alcohol, would your impairment still be disabling? To establish this point, it is best to have a drug or alcohol-free period. The Hearings, Appeals and Litigation Law Manual (HALLEX) has referred to a period of one month to determine if the substance abuse is material to the disability. The HALLEX is more of a guideline than legally binding, but any abstinence from substance abuse provides the opportunity to prove that substance abuse is not a material factor to your disability. (HALLEX I-5-3-14A-V-D.)
Acknowledged medical evidence of drug addiction or alcohol, as described by the HALLEX, includes acceptable medical sources sufficient and appropriate to establish that the claimant has a medically determinable substance use disorder. The ALJ can use your testimony as evidence, but merely admitting that you have abused or are addicted to a substance is insufficient alone to establish drug addiction or alcoholism even when otherwise reported by an acceptable medical source. (HALLEX I-5-3-14A-V-C.)
There may be some occasions where a claimant tests positive for a drug, but did not actually use the drug. For example, a claimant may test positive for opiates when he in fact was using the prescribed drug codeine or morphine. Codeine is a frequently prescribed narcotic used for the relief of moderate pain and cough suppression. (www.usdoj.gov/dea/condern/codeine.html)
Another example may be inhaling second hand smoke from a person who is using marijuana nearby. While this is possible, be aware that the levels of the drug in a person’s system are shown in a blood or urinalysis test, and professionals are aware of levels from smoking versus second hand smoke levels. It is best to tell the ALJ the absolute truth about drug use even in these cases because the drug screens will accurately depict the quantity of drugs in your system.
Social Security hearings are informal, but you are still under oath. Telling the truth about any illegal drug or alcoholism will allow your attorney to address the issue head-on and develop an argument, all to your benefit.
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