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I am a licensed professional counselor in Dallas, TX. I have…

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I am a licensed...

I am a licensed professional counselor in Dallas, TX. I have a new client who is on Social Security disability. He has, in the past, had a DSM diagnosis of drug abuse. He was told that if that diagnosis is revealed in counseling notes from a therapist to Social Security, his disability benefits will be terminated. He is very anxious about this. I told him I would check to see if that is indeed the case. He has already terminated counseling with one therapist, and he is very much in need of that service. Can you tell me whether it is true that his benefits would be cancelled if his past abuse is revealed in a therapist's notes sent in to Social Security?

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state this is in?

This is in TX.

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

He is unemployed, due to significant medical problems--diabetes, cardiac condition and major depressive disorder. He hasn't been able to work for at least 10 years.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

The man is 61, and he lives on Social Security disability and has for several years. He lives in a Section 8 apt., and his only source of income is his SSI benefits. He feels that his many health problems are, at least in part, due to his past drug abuse. He was told by a "friend" that he will be terminated from SSI if this is reported. He lives in Dallas, TX. Could you tell me if this is indeed the case, or was someone just attempting to frighten him in order to get a reaction?

Submitted: 4 months ago.Category: Employment Law
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12/12/2017
Employment Lawyer: legalgems, Lawyer replied 4 months ago
legalgems
legalgems, Lawyer
Category: Employment Law
Satisfied Customers: 12,569
Experience: Just Answer consultant at Self employed
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Employment Lawyer: legalgems, Lawyer replied 4 months ago

Yes that is correct; a substance abuse history, if part of the underlying cause of the disability, may lead to disqualification; please see here

specifically:

4. DAA is not material

We find that DAA is not material to the disability determination if the claimant would still meet our definition of disability if he or she was not using drugs or alcohol. If DAA is not material, we find that the claimant is disabled.

Scenarios when DAA is not material

DAA is not material when the claimant has a disabling impairment independent of DAA. The following list provides examples of other disabling impairments that the claimant may have that could be disabling on its own:

  1. a degenerative neurological disease;

  2. a hereditary neurological disease;

  3. kidney disease that requires chronic dialysis,

  4. an intellectual disability;

  5. a listing-level diagnosis of schizophrenia;

  6. The claimant acquired a separate disabling impairment(s) while use using substance(s). For example, the claimant has:

    • quadriplegia because of an accident while driving under the influence of alcohol; or

    • listing-level human immunodeficiency virus (HIV) from sharing a needle for intravenous drug use; and

  7. The claimant’s DAA medically caused the other disabling impairment(s) but the resulting impairment(s) is irreversible or could not improve to the point of nondisability. For example:

    • peripheral neuropathy,

    • permanent encephalopathy,

    • cirrhosis of the liver, and

    • substance-induced persisting dementia and substance-induced persisting amnestic disorder that develop from long-term alcohol or drug use.

5. The claimant’s burden of proof

The claimant has the burden of proving disability throughout the sequential evaluation process. As in all disability determinations and decisions, our burden is limited to producing evidence that work the claimant can do exists in the national economy at step 5 of the sequential evaluation process. For more information on the claimant’s burden of proof, see 20 CFR 404.1512, 404.1560, 416.912, and 416.960 and SSR 13-2p, Question 8. The claimant continues to have the burden of proving of disability throughout the DAA materiality analysis, when we apply the steps of the sequential evaluation a second time to determine whether the claimant would be disabled if he or she were not using drugs or alcohol.

Please note the burden is on the claimant to address materiality.

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Employment Lawyer: legalgems, Lawyer replied 4 months ago

Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

The above information is for educational purposes only. A consultation with a private attorney is recommended so they can apply the law to your specific facts, and suggest the best course of action. An attorney can be located here:
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