Social Security Ruling, SSR 13-2p.; Titles II and XVI: Evaluating Cases Involving Drug Addiction and Alcoholism (DAA), 11939-11947 [2013-03751]

Agencies

• Social Security Administration

[Federal Register Volume 78, Number 34 (Wednesday, February 20, 2013)]
[Notices]
[Pages 11939-11947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03751]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2012-0006]


Social Security Ruling, SSR 13-2p.; Titles II and XVI: Evaluating 
Cases Involving Drug Addiction and Alcoholism (DAA)

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

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SUMMARY: We are giving notice of SSR 13-2p, in which we explain our 
policies for how we consider whether ``drug addiction and alcoholism'' 
(DAA) is material to our determination of disability in disability 
claims and continuing disability reviews. This SSR rescinds and 
replaces SSR 82-60, Titles II and XVI: Evaluation of Drug Addiction and 
Alcoholism. This SSR obsoletes EM 96-200.

DATES: Effective Date: March 22, 2013.

FOR FURTHER INFORMATION CONTACT: Cheryl Williams, Office of Disability 
Programs, Office of Medical Listings Improvement, Social Security 
Administration, 640l Security Boulevard, Baltimore, MD 21235-6401, 
(410) 965-1020, or TTY 1-800-325-0778.

SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do 
not require us to publish this SSR, we are doing so in accordance with 
20 CFR 402.35(b)(1).
    SSRs make available to the public precedential decisions relating 
to the Federal old-age, survivors, disability, supplemental security 
income, special veterans benefits, and black lung benefits programs. 
SSRs may be based on determinations or decisions made at all levels of 
administrative adjudication, Federal court decisions, Commissioner's 
decisions, opinions of the Office of the General Counsel, or other 
interpretations of the law and regulations.
    Although SSRs do not have the same force and effect as statutes or 
regulations, they are binding on all of our components. 20 CFR 
402.35(b)(1).
    This SSR will be in effect until we publish a notice in the Federal 
Register that rescinds it or publish a new SSR that replaces or 
modifies it.

(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social 
Security--Disability Insurance; 96.006 Supplemental Security 
Income.)

    Dated: February 12, 2013.
Michael J. Astrue,
Commissioner of Social Security.

POLICY INTERPRETATION RULING

TITLES II AND XVI: EVALUATING CASES INVOLVING DRUG ADDICTION AND 
ALCOHOLISM (DAA)

    This Social Security Ruling (SSR) rescinds and replaces SSR 82-60: 
``Titles II and XVI: Evaluation of Drug Addiction and Alcoholism.''
    PURPOSE: This SSR explains our policies for how we consider whether 
``drug addiction and alcoholism'' (DAA) is a contributing factor 
material to our determination of disability in disability claims and 
continuing disability reviews.\1\
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    \1\ For simplicity, we refer in this SSR only to initial adult 
claims for disability benefits under titles II and XVI of the Social 
Security Act, and to the steps of the sequential evaluation process 
we use to determine disability in those claims. 20 CFR 404.1520 and 
416.920. The policy interpretations in this SSR apply to all other 
cases in which we must make determinations about disability, 
including claims of children (that is, people who have not attained 
age 18) who apply for benefits based on disability under title XVI 
of the Act, redeterminations of the disability of children who were 
receiving benefits under title XVI when they attained age 18, and 
continuing disability reviews of adults and children under titles II 
and XVI of the Act. 20 CFR 404.1594, 416.924, 416.987, 416.994, and 
416.994a.

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[[Page 11940]]

    CITATIONS: Sections 216(i), 223(d), 223(f), 1614(a). and 1614(c) of 
the Social Security Act, as amended; Regulations No. 4, subpart P, 
sections 404.1502, 404.1505, 404.1508, 404.1509, 404.1512, 404.1513, 
404.1517, 404.1519a, 404.1520, 404.1521, 404.1523, 404.1527, 404.1528, 
404.1530, 404.1535, 404.1560, 404.1594, and appendix 1; and Regulations 
No. 16, subpart I, sections 416.902, 416.905, 416.906, 416.908, 
416.909, 416.912, 416.913, 416.917, 416.919a, 416.920, 416.921, 
416.923, 416.924, 416.924a, 416.926a, 416.927, 416.928, 416.930, 
416.935, 416.960, 416.987, 416.994, and 416.994a.
    INTRODUCTION: In this SSR, we consolidate information from a 
variety of sources to explain our DAA policy. We include information 
from our regulations, training materials, and question-and-answer (Q&A) 
responses. We also base the SSR on information we obtained from 
individual medical and legal experts, the Substance Abuse and Mental 
Health Services Administration in the U.S. Department of Health and 
Human Services, and our adjudicative experience.

POLICY INTERPRETATION:

General

    a. Sections 223(d)(2)(C) and 1614(a)(3)(J) of the Social Security 
Act (Act) provide that a claimant ``shall not be considered to be 
disabled * * * if alcoholism or drug addiction would * * * be a 
contributing factor material to the Commissioner's determination that 
the individual is disabled.'' When we adjudicate a claim for disability 
insurance benefits (DIB), Supplemental Security Income (SSI) payments 
based on disability, or concurrent disability claims include evidence 
from acceptable medical sources as defined in 20 CFR 404.1513 and 20 
CFR 416.913 establishing that DAA is a medically determinable 
impairment(s) (MDI) and we determine that a claimant is disabled 
considering all of the claimant's medically determinable impairments 
(MDIs), we must then determine whether the claimant would continue to 
be disabled if he or she stopped using drugs or alcohol; that is, we 
will determine whether DAA is ``material'' to the finding that the 
claimant is disabled. 20 CFR 404.1535 and 416.935. See Question 2 for 
additional information.
    b. The information that follows, presented in question and answer 
(Q&A) format with illustrative scenarios, provides specific detail and 
examples to explain our DAA policy. Question 1 specifies the MDIs we 
consider under our DAA policy. Different Q&As will apply during the 
adjudication of a specific claim based upon the evidence in that case. 
All adjudicators must provide sufficient information in their 
determination or decision that explains the rationale supporting their 
determination of the materiality of DAA so that a subsequent reviewer 
considering all of the evidence in the case record is able to 
understand the basis for the materiality finding and the determination 
of whether the claimant is disabled. Question 14 specifies what 
information adjudicators must include in a determination or decision 
that requires a finding of the materiality of DAA to the determination 
that the claimant is disabled.
List of Questions
    1. How do we define the term ``DAA''?
    2. What is our DAA policy?
    3. When do we make a DAA materiality determination?
    4. How do we determine whether a claimant has DAA?
    5. How do we determine materiality?
    6. What do we do if the claimant's other physical impairment(s) 
improve to the point of nondisability in the absence of DAA?
    7. What do we do if the claimant's co-occurring mental disorder(s) 
improve in the absence of DAA?
    8. What evidence do we need in cases involving DAA?
    9. How do we consider periods of abstinence?
    10. How do we evaluate a claimant's credibility in cases involving 
DAA?
    11. How do we establish onset in DAA cases?
    12. Can failure to follow prescribed treatment be an issue in DAA 
cases?
    13. Who is responsible for determining materiality?
    14. What explanations does the determination or decision need to 
contain?
    15. How should adjudicators consider Federal district and circuit 
court decisions about DAA?

1. How do we define the term ``DAA''?

    a. Although the terms ``drug addiction'' and ``alcoholism'' are 
medically outdated, we continue to use the terms because they are used 
in the Act.\2\
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    \2\ See sections 223(d)(2)(C) and 1614(a)(3)(J) of the Act.
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    i. With one exception--nicotine use disorders--we define the term 
DAA as Substance Use Disorders; that is, Substance Dependence or 
Substance Abuse as defined in the latest edition of the Diagnostic and 
Statistical Manual of Mental Disorders (DSM) published by the American 
Psychiatric Association.\3\ See Question 4. In general, the DSM defines 
Substance Use Disorders as maladaptive patterns of substance use that 
lead to clinically significant impairment or distress.\4\
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    \3\ American Psychiatric Association (APA), Diagnostic and 
Statistical Manual of Mental Disorders, Fourth Edition, Text 
Revision, (DSM-IV-TR), Washington, DC (2000). When we published this 
SSR, the APA used the term ``dependence.'' The APA was considering 
changing the term ``dependence'' to ``addiction'' in the forthcoming 
DSM-V. For this SSR, there is no substantive difference between the 
two terms.
    \4\ See DSM-IV-TR p. 197, Criteria for Substance Dependence and 
p. 199 for Substance Abuse.
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    ii. There are two Substance-Induced Disorders that we consider 
under the definition of DAA because they may be long lasting or 
permanent. Substance-Induced Persisting Dementia and Substance-Induced 
Persisting Amnestic Disorder last beyond the usual duration of 
substance intoxication and withdrawal. Substance-Induced Persisting 
Dementia refers to the development of multiple cognitive deficits that 
include memory impairment and at least one of the following cognitive 
disturbances: aphasia, apraxia, agnosia, or a disturbance in executive 
functioning. To document this condition, there must be evidence from 
the medical history, physical examination, or laboratory findings 
showing that the deficits are due to the persisting effects of 
substance use. Substance-Induced Persisting Amnestic Disorder refers to 
a combination of multiple memory deficits that significantly impair 
social or occupational functioning and represent a significant decline 
from a previous level of functioning. To document this condition, the 
evidence must establish that the deficits are clearly due to the 
persisting effects of substance abuse.
    b. Substance Use Disorders are diagnosed in part by the presence of 
maladaptive use of alcohol, illegal drugs, prescription medications, 
and toxic substances (such as inhalants).\5\ For this reason, DAA does 
not include:
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    \5\ We do not consider Caffeine-Induced Disorders under DAA. 
``Some individuals who drink large amounts of coffee display some 
aspects of dependence on caffeine and exhibit tolerance and perhaps 
withdrawal. However, the data are insufficient at this time to 
determine whether these symptoms are associated with clinically 
significant impairment that meets the criteria for Substance 
Dependence or Substance Abuse.'' DSM-IV-TR p. 231. Thus, it is not 
appropriate to make a determination of materiality because a 
claimant drinks coffee to excess and may have been diagnosed with a 
Caffeine-Induced Disorder. The DSM-IV-TR does not include diagnoses 
for Caffeine Dependence or Caffeine Abuse.
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     Fetal alcohol syndrome,
     Fetal cocaine exposure, or

[[Page 11941]]

     Addiction to, or use of, prescription medications taken as 
prescribed, including methadone and narcotic pain medications.
    A claimant's occasional maladaptive use or a history of occasional 
prior maladaptive use of alcohol or illegal drugs does not establish 
that the claimant has a medically determinable Substance Use Disorder. 
See Questions 4 and 8.
    c. Although the DSM includes a category for nicotine-related 
disorders, including nicotine dependence, we will not make a 
determination regarding materiality based on these disorders.\6\
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    \6\ We have further considered our policy in this area and have 
found no indication in the statutory language or the legislative 
history of the DAA provisions of the Act that Congress intended the 
DAA provisions to apply to people who use tobacco products.
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2. What is our DAA policy?

    The key factor we will examine in determining whether drug 
addiction or alcoholism is a contributing factor material to the 
determination of disability is whether we would still find a claimant 
disabled if he or she stopped using drugs or alcohol.
    a. DAA is not material to the determination that the claimant is 
under a disability if the claimant would still meet our definition of 
disability \7\ if he or she were not using drugs or alcohol. If DAA is 
not material, we find that the claimant is disabled.\8\
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    \7\ See Section 223(d)(1) of the Act.
    \8\ 20 CFR 404.1535 and 416.935.
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    b. DAA is material to the determination of disability if the 
claimant would not meet our definition of disability if he or she were 
not using drugs or alcohol. If DAA is material, we find that the 
claimant is not disabled.

3. When do we make a DAA materiality determination?

    a. Under the Act and our regulations, we make a DAA materiality 
determination only when:
    i. We have medical evidence from an acceptable medical source 
establishing that a claimant has a Substance Use Disorder, and
    ii. We find that the claimant is disabled considering all 
impairments, including the DAA.\9\
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    \9\ Under title XVI, ``blindness'' is a separate category from 
``disability,'' and section 1614(a)(3)(J) of the Act applies only to 
determinations of disability. For this reason, we do not consider 
the issue of materiality in cases of claimants with blindness under 
title XVI. 20 CFR 416.935(a).
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    b. We do not make a determination regarding materiality if a 
claimant has a history of DAA that is not relevant to the period under 
consideration.

4. How do we determine whether a claimant has DAA?

    Subject to the exception regarding nicotine use disorders in 
Question 1 above, a claimant has DAA only if he or she has a medically 
determinable Substance Use Disorder. The DSM includes all medically 
determinable Substance Use Disorders; therefore, we do not require 
adjudicators to identify a specific DAA diagnosis in the DSM. We use 
the same rules for determining whether a claimant has a Substance Use 
Disorder as we use for any other medically determinable physical or 
mental impairment. See Question 8.

5. How do we determine materiality?

    a. Burden of Proof. The claimant has the burden of proving 
disability throughout the sequential evaluation process. Our only 
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. See 20 CFR 404.1512, 404.1560, 416.912, and 416.960. 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, it is our longstanding policy that the claimant 
continues to have the burden of proving disability throughout the DAA 
materiality analysis. There does not have to be evidence from a period 
of abstinence for the claimant to meet his or her burden of proving 
disability. See Question 9, section (d) (i).
    b. DAA Evaluation Process. We describe various considerations that 
may apply when we decide whether we must consider the issue of 
materiality and, if so, whether DAA is material to the determination of 
disability. In this SSR, we address these considerations as a ``DAA 
evaluation process'' in a series of six steps. Although the steps are 
in a logical order from the simplest to the most complex cases, we do 
not require our adjudicators to follow them in the order we provide. 
For example, when DAA is the only impairment adjudicators can go 
directly to step three and deny the claim because DAA is material.
    In the sections that follow, we provide more details about the DAA 
Evaluation Process.

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1. Does the claimant have DAA?.........  a. No--No DAA materiality
                                          determination necessary.
                                         b. Yes--Go to step 2.
2. Is the claimant disabled considering  a. No--Do not determine DAA
 all impairments, including DAA?          materiality. (Denial.)
                                         b. Yes--Go to step 3.
3. Is DAA the only impairment?.........  a. Yes--DAA material. (Denial.)
                                         b. No--Go to step 4.
4. Is the other impairment(s) disabling  a. No--DAA material. (Denial.)
 by itself while the claimant is
 dependent upon or abusing drugs or
 alcohol?
                                         b. Yes--Go to step 5.
5. Does the DAA cause or affect the      a. No--DAA not material.
 claimant's medically determinable        (Allowance.)
 impairment(s)?
                                         b. Yes, but the other
                                          impairment(s) is irreversible
                                          or could not improve to the
                                          point of nondisability--DAA
                                          not material. (Allowance.)
                                         c. Yes, and DAA could be
                                          material--Go to step 6.
6. Would the other impairment(s)         a. Yes--DAA material. (Denial.)
 improve to the point of nondisability
 in the absence of DAA?
                                         b. No--DAA not material
                                          (Allowance.)
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    The following are detailed explanations of each step.
    a. Step 1: Does the claimant have DAA? If the evidence does not 
establish DAA, there can be no issue of DAA materiality. See Questions 
3 and 8. Apply the appropriate sequential evaluation process only once 
to determine whether the claimant is disabled.
    b. Step 2: Is the claimant disabled considering all of his or her 
impairments, including DAA? Apply the appropriate sequential evaluation 
process to determine whether the

[[Page 11942]]

claimant is disabled considering all of his or her impairments, 
including DAA.\10\ If the claimant is not disabled, deny the claim.\11\
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    \10\ 20 CFR 404.1520 and 416.920.
    \11\ For all initial claims under title II and claims of adults 
under title XVI, this means that the impairment(s) must prevent the 
claimant from doing any substantial gainful activity and meet the 
duration requirement; that is, the impairment(s) must be expected to 
result in death or must have lasted or be expected to last for a 
continuous period of at least 12 months.
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    c. Step 3: Is DAA the claimant's only impairment? Find that DAA is 
material to the determination of disability and deny the claim if the 
claimant's only MDI is a Substance Use Disorder.\12\ As in all DAA 
materiality determinations, apply the appropriate sequential evaluation 
process twice. First, apply the sequential evaluation process to show 
how the claimant is disabled. Then, apply the sequential evaluation 
process a second time to document materiality and deny the claim.\13\
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    \12\ Adjudicators should be cautious when making this finding 
because there is a high prevalence of physical and co-occurring 
mental impairments associated with long-term drug and alcohol use. 
If there is any indication in the record that the claimant has 
another physical or mental impairment(s), it is essential to request 
evidence regarding the other impairment(s). If there is no evidence 
of another physical or mental impairment(s), however, we will not 
develop for the mere possibility that the claimant might have 
another impairment(s).
    \13\ We consider two issues at step 2: whether the claimant has 
a medically determinable impairment and whether any medical 
determinable impairment the claimant has is ``severe'' and meets the 
duration requirement. See 20 CFR 404.1520(a)(4)(ii) and 
416.920(a)(4)(ii); SSR 96-4p.
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    d. Step 4: Is the claimant's other MDI(s) disabling by itself while 
the claimant is dependent upon or abusing drugs or alcohol?
    i. A second application of the sequential evaluation process may 
demonstrate that the claimant's other physical or mental impairment(s) 
is not sufficiently severe to establish disability by itself while the 
claimant is dependent upon or abusing drugs or alcohol. In this case, 
deny the claim because DAA is material. The claimant would not be 
disabled regardless of whether the other impairment(s) would improve if 
he or she stopped using the substance(s) he or she is dependent upon or 
abusing. For example:
     The other impairment(s) may not be severe while the 
claimant is still dependent upon or abusing the substance(s).\14\ For 
example, if a claimant has osteoarthritis of the hip with minimal 
changes on imaging along with DAA, DAA is generally material to the 
determination of disability. We would generally deny the claimant at 
step 2 of the sequential evaluation process based on osteoarthritis of 
the hip with minimal changes on imaging alone, regardless of whether 
the osteoarthritis would improve absent the DAA, because it would not 
significantly limit the claimant's ability to do basic work 
activities.\15\
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    \14\ See 20 CFR 404.1520(c), 404.1521, 416.920(c), and 416.921; 
SSR 85-28.
    \15\ In some cases, people use drugs or alcohol to lessen the 
symptoms of their other impairment(s). Adjudicators should be alert 
to any evidence in the case record that suggests that a claimant's 
symptoms may worsen in the absence of drugs or alcohol at this or 
any other step in this section. We do not require adjudicators to 
seek evidence of this possibility, but adjudicators should follow up 
when there is an indication in the case record that the claimant's 
symptoms worsen in the absence of substance use.
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     The other impairment(s) may be severe but not disabling by 
itself. For example, a claimant may have a severe back impairment that 
does not meet or medically equal a listing and does not preclude a 
claimant from doing past relevant work. We would deny the claim at step 
4 of the sequential evaluation process based on the back impairment 
alone because DAA is material.
    ii. When the claimant's other impairment(s) is not disabling by 
itself, adjudicators must still apply the sequential evaluation twice, 
first to show that the claimant is disabled considering all MDIs, 
including DAA, and a second time to show that the claimant would not be 
disabled absent DAA. However, we do not require adjudicators to 
determine whether the other impairment would improve if the claimant 
stopped using drugs or alcohol he or she is dependent upon or abusing 
because DAA materiality is established without this additional 
analysis.
    e. Step 5: Does the DAA cause or affect the claimant's other 
MDI(s)?
    i. If the claimant has another physical or mental impairment(s) 
that results in disability \16\ and DAA is not causing or does not 
affect the other impairment(s) to the point where the other 
impairment(s) could be found nondisabling in the absence of DAA, DAA is 
not material to the determination of disability. The claim should be 
allowed. There are three basic scenarios:
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    \16\ Inherent in this finding is that the other impairment(s) 
meets the duration requirement in addition to preventing the 
claimant from working.
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     The claimant has a disabling impairment independent of 
DAA; for example, a degenerative neurological disease, a hereditary 
kidney disease that requires chronic dialysis, or intellectual 
disability (mental retardation) since birth. See 20CFR 
404.1535(b)(2)(ii) and 416.935(b)(2)(ii).
     The claimant acquired a separate disabling impairment(s) 
while using a substance(s). One example is the claimant has 
quadriplegia because of an accident while driving under the influence 
of alcohol. A second example is the claimant acquired listing-level 
human immunodeficiency virus (HIV) infection from sharing a needle for 
intravenous drug use. In each example, the claimant acquired the 
impairment because of an activity related to substance use, but the 
Substance Use Disorder did not medically cause or exacerbate the 
impairment.
     The claimant's DAA medically caused the other disabling 
impairment(s) but the other impairment(s) is irreversible or could not 
improve to the point of nondisability in the absence of DAA. Examples 
of such impairments could include peripheral neuropathy, permanent 
encephalopathy, cirrhosis of the liver, Substance-Induced Persisting 
Dementia, and Substance-Induced Persisting Amnestic Disorder that 
result from long-term alcohol or drug use.
    ii. As in any determination regarding materiality, adjudicators 
must apply the sequential evaluation process twice even when the other 
impairment(s) is irreversible or could not improve to the point of 
nondisability.
    f. Step 6: Would the claimant's other impairment(s) improve to the 
point of nondisability in the absence of DAA?
    i. This step includes some of the most complex cases for the DAA 
materiality analysis. At this point, we have determined that:
     The claimant has DAA and at least one other medically 
determinable physical or mental impairment,
     The other impairment(s) could be disabling by itself, and
     The other impairment(s) might improve to the point of 
nondisability if the claimant were to stop using drugs or alcohol.
    ii. At this step, we must project the severity of the claimant's 
other impairment(s) in the absence of DAA. We make this finding based 
on the evidence in the claimant's case record. In some cases, we may 
also consider medical judgments about the likely remaining medical 
findings and functional limitations the claimant would have in the 
absence of DAA. How we make this finding differs somewhat depending on 
whether the claimant's other impairment(s) is physical or mental. See 
Questions 6 and 7, respectively.
    iii. DAA is material if the claimant's other impairment(s) would 
improve to the point that the claimant would not be disabled in the 
absence of DAA. On these findings, we deny the claim. However, if the 
claimant's other

[[Page 11943]]

impairment(s) would not improve to the point that the claimant would 
not be disabled in the absence of DAA, we allow the claim. In this 
instance, the DAA is not material to the determination of disability.

6. What do we do if the claimant's other physical impairment(s) improve 
in the absence of DAA?

    a. DAA can cause or exacerbate the effects of physical impairments. 
In some cases, the impairments and their effects may resolve or improve 
in the absence of DAA.
    b. Usually, evidence from a period of abstinence \17\ is the best 
evidence for determining whether a physical impairment(s) would improve 
to the point of nondisability. The period of abstinence should be 
relevant to the period we are considering in connection with the 
disability claim.\18\ This evidence need not always come from an 
acceptable medical source. If we are evaluating whether a claimant's 
work-related functioning would improve, we may rely on evidence from 
``other'' medical sources, such as nurse practitioners, and other 
sources, such as family members, who are familiar with how the claimant 
has functioned during a period of abstinence. See Question 8.
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    \17\ In this SSR, we use the term period of abstinence to 
describe a period in which a claimant who has, or had, been 
dependent upon or abusing drugs or alcohol and stopped their use.
    \18\ The period of abstinence does not have to occur during the 
period we are considering in connection with the claim as long as it 
is medically relevant to the period we are considering. For example, 
a claimant for title XVI payments has a permanent physical 
impairment(s) that in some people improves when they stop abusing 
alcohol. However, there is evidence from a year before the date of 
the application showing that when this claimant stopped drinking, 
the impairment(s) improved only minimally. In this case, we may 
conclude that the impairment(s) would not improve to the point of 
nondisability in the absence of DAA. See also Question 9.
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    c. We expect some physical impairments to improve with abstinence 
from drugs or alcohol.
    i. Examples of such impairments that drugs or alcohol may cause or 
exacerbate include alcoholic hepatitis, fatty liver, and alcoholic 
cardiomyopathy.
    ii. When a claimant has a physical impairment(s) that is likely to 
improve with abstinence, we may consider medical opinions from treating 
or nontreating sources about the likely effects that abstinence from 
drugs or alcohol would have on the impairment(s).\19\ Treating sources, 
especially specialists, may have the best understanding of the specific 
clinical course of a claimant's DAA and other impairment(s), as well as 
whether, and the extent to which the other impairment(s) would likely 
improve absent DAA. If the treating source does not give supporting 
evidence for his or her opinion, the adjudicator should consider 
contacting the treating source before considering purchasing a 
consultative exam (CE). If we purchase a CE to evaluate the physical 
impairment(s), we may ask the CE provider for an opinion about whether 
and the extent to which the impairment(s) would be expected to improve. 
We will not purchase a CE solely to obtain such an opinion. In any 
case, we will not adopt a medical opinion about whether the 
impairment(s) would improve unless the medical source provides some 
support for the opinion. The opinion may be supported by the medical 
source's knowledge and expertise.
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    \19\ 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. In cases involving mental impairment(s) we will not ask for 
projections, as we explain in Question 7.
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    iii. At the State agency levels of the administrative review 
process, a State agency medical or psychological consultant (MC/PC) may 
use his or her knowledge and expertise to project improvement of a 
physical impairment(s). At the hearing and appeals levels, 
Administrative Law Judges (ALJs) and the Appeals Council (when the 
Appeals Council makes a decision) must consider such MC/PC findings as 
medical opinion evidence and may base their findings about materiality 
on these opinions. ALJs and the Appeals Council may also base their 
findings on testimony from medical experts. As we provide in our 
regulations on considering nonexamining source opinion evidence, ALJs 
and the Appeals Council will give weight to these opinions to the 
extent that they are supported and consistent with other relevant 
evidence in the case record.\20\ Medical source knowledge and expertise 
are factors that may support the finding.
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    \20\ See 20 CFR 404.1527(f) and 416.927(f); SSR 96-6p.
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    iv. Some claimants who have been diagnosed with a Substance Use 
Disorder do not have a period of abstinence. If a claimant does not 
have a period of abstinence, an acceptable medical source can provide a 
medical opinion regarding whether the claimant's impairments would be 
severely limiting even if the claimant stopped abusing drugs or 
alcohol. We consider the opinion of an acceptable medical source 
sufficient evidence regarding materiality as long as the acceptable 
medical source provides support for their opinion. The determination or 
decision must include information supporting the finding. See Question 
14.
    v. Adjudicators should generally not rely on a medical opinion to 
find that DAA is material if the case record contains credible evidence 
from an acceptable medical source from a relevant period of abstinence 
indicating that the impairment(s) would still be disabling in the 
absence of DAA. In cases in which it is appropriate to rely on a 
medical opinion to find that DAA is material despite evidence 
indicating the impairment(s) may not improve, adjudicators must provide 
an appropriate rationale to resolve the apparent conflict in the 
evidence.
    d. We will find that DAA is not material to the determination of 
disability and allow the claim if the record is fully developed and the 
evidence (including medical opinion evidence) does not establish that 
the claimant's physical impairment(s) would improve to the point of 
nondisability in the absence of DAA.

7. What do we do if the claimant's co-occurring mental disorder(s) 
improve in the absence of DAA?

    a. Many people with DAA have co-occurring mental disorders; that 
is, a mental disorder(s) diagnosed by an acceptable medical source in 
addition to their DAA. We do not know of any research data that we can 
use to predict reliably that any given claimant's co-occurring mental 
disorder would improve, or the extent to which it would improve, if the 
claimant were to stop using drugs or alcohol.
    b. To support a finding that DAA is material, we must have evidence 
in the case record that establishes that a claimant with a co-occurring 
mental disorder(s) would not be disabled in the absence of DAA. Unlike 
cases involving physical impairments, we do not permit adjudicators to 
rely exclusively on medical expertise and the nature of a claimant's 
mental disorder.
    c. We may purchase a CE in a case involving a co-occurring mental 
disorder(s). We will purchase CEs primarily to help establish whether a 
claimant who has no treating source records has a mental disorder(s) in 
addition to DAA. See Question 8. We will provide a copy of this 
evidence, or a summary, to the CE provider.

[[Page 11944]]

    d. We will find that DAA is not material to the determination of 
disability and allow the claim if the record is fully developed and the 
evidence does not establish that the claimant's co-occurring mental 
disorder(s) would improve to the point of nondisability in the absence 
of DAA.

8. What evidence do we need in cases involving DAA?

    a. General.
    We follow our usual case development rules and procedures for any 
impairment in cases in which DAA materiality is, or may be, an issue 
\21\ We will ask for evidence regarding DAA in any case in which there 
is an allegation or other indication that the claimant has a Substance 
Use Disorder, such as evidence that a claimant is currently receiving 
treatment for a Substance Use Disorder or evidence of multiple 
emergency department admissions due to the effects of substance(s) use. 
If we do not initially receive sufficient evidence to evaluate DAA, we 
may or may not continue to develop evidence of DAA, as follows:
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    \21\ See 20 CFR 404.1512, 404.1513, 416.912, and 416.913.
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    i. We will not continue to develop evidence of DAA if the evidence 
we obtain about a claimant's other impairment(s) is complete and shows 
that the claimant is not disabled. We will not complete development of 
DAA only to determine whether the claimant is disabled considering DAA 
because the additional evidence could only change the reason for our 
denial.
    ii. We will not continue to develop evidence of DAA if the claimant 
is disabled by another impairment(s) and DAA could not be material to 
the determination of disability. For example, if the claimant has a 
disabling impairment(s) that is unrelated to, and not exacerbated by 
DAA, or that is irreversible, we would find that DAA is not material to 
the determination of disability even if we completed the development.
    iii. We will attempt to complete development of DAA in all other 
cases, including cases in which DAA is a claimant's only alleged 
impairment. We generally require our adjudicators to make every 
reasonable effort to develop a complete medical history. Moreover, many 
claimants with DAA have other physical and mental impairments, and 
complete development ensures that we do not overlook any impairments.
    b. Establishing the existence of DAA.
    i. As for any medically determinable impairment, we must have 
objective medical evidence--that is, signs, symptoms, and laboratory 
findings--from an acceptable medical source that supports a finding 
that a claimant has DAA.\22\ This requirement can be satisfied when 
there are no overt physical signs or laboratory findings with clinical 
findings reported by a psychiatrist, psychologist, or other appropriate 
acceptable medical source based on examination of the claimant. The 
acceptable medical source may also consider any records or other 
information (for example, from a third party) he or she has available, 
but we must still have the source's own clinical or laboratory 
findings.
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    \22\ See 20 CFR 404.1502, 404.1508, 404.1513(a), and 404.928, 
and 20 CFR 416.902, 416.908, 416.913(a), and 416.928.
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    ii. Evidence that shows only that the claimant uses drugs or 
alcohol does not in itself establish the existence of a medically 
determinable Substance Use Disorder. The following are examples of 
evidence that by itself does not establish DAA:
     Self-reported drug or alcohol use.
     An arrest for ``driving under the influence''.
     A third-party report.
    Although these examples may suggest that a claimant has DAA--and 
may suggest the need to develop medical evidence about DAA--they are 
not objective medical evidence provided by an acceptable medical 
source. In addition, even when we have objective medical evidence, we 
must also have evidence that establishes a maladaptive pattern of 
substance use and the other requirements for diagnosis of a Substance 
Use Disorder(s) in the DSM. This evidence must come from an acceptable 
medical source.
    c. Other evidence.
    i. Many claimants with Substance Use Disorders receive care from 
``other'' non-medical and medical sources that are not acceptable 
medical sources. Evidence from these sources can be helpful to the 
adjudicator in determining the severity of DAA and whether DAA is 
material to the finding of disability.\23\ Examples of ``other'' 
nonmedical sources include, but are not limited to: Non-clinical social 
workers, caseworkers, vocational rehabilitation specialists, family 
members, school personnel, clergy, friends, licensed chemical 
dependency practitioners, and the claimant. Examples of ``other'' 
medical sources include but are not limited to: nurse practitioners, 
physicians' assistants and therapists.
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    \23\ 20 CFR 404 1513(d)(1) and 416.913d(1) and 20 CFR 1513(d)(4) 
and 416.913(d)(4).
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    ii. When we have information from ``other'' sources, we may 
consider it together with objective medical findings from a treating or 
nontreating acceptable medical source to document that a claimant has 
DAA. Information from ``other'' sources can describe a claimant's 
functioning over time and can also be especially helpful in documenting 
the severity of DAA because it supplements the medical evidence of 
record. ``Other'' source opinions can assist in our determination 
whether DAA is material to a finding of disability because it can 
document how the well the claimant is performing activities of daily 
living in the presence of a comorbid impairment. In many cases, 
evidence from ``other'' sources may be the most important information 
in the case record for these documentation issues.\24\
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    \24\ See SSR 06-3p.
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    d. Consultative examinations.
    i. We may purchase a CE if there is no existing medical evidence or 
the evidence as a whole, both medical and nonmedical, is insufficient 
for us to make a determination or decision. The type and number of CEs 
we purchase will depend on the claimant's allegations and the other 
information in the case record. For instance, claimants who have a 
history of multiple emergency department visits for mental symptoms are 
often diagnosed with Substance-Induced Disorders. Some receive a 
Substance Dependence or Substance Abuse diagnosis. Many of these 
individuals--especially those who do not have an ongoing treatment 
relationship with a medical source, as is frequently the case with 
homeless claimants--may have undiagnosed co-occurring mental disorders. 
We may purchase CEs to help us determine whether such claimants have 
co-occurring mental disorder(s). Whenever possible, we will try to 
purchase CEs from individuals who specialize in treating and examining 
people who have Substance Use Disorders or dual diagnoses of Substance 
Use Disorders and co-occurring mental disorders. See Questions 6 and 7 
for more specific information about purchasing CEs for physical and 
mental impairments.
    ii. We will not purchase drug or alcohol testing. A single drug or 
alcohol test is not sufficient to establish DAA as a medically 
determinable impairment, nor does it provide pertinent information that 
can help us determine whether DAA is material to a finding of 
disability.\25\
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    \25\ We will not purchase drug screening or testing to determine 
the validity of psychological testing. The examining psychologist or 
other professional who performs the test should be able to provide 
an opinion on the validity of the psychological test findings 
without drug testing.

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[[Page 11945]]

9. How do we consider periods of abstinence?

    a. Each substance of abuse, including alcohol, has different 
intoxication and long-term physiologic effects. In addition, there is a 
wide variation in the duration and intensity of substance use among 
claimants with DAA, and there are wide variations in the interactions 
of DAA with different types of physical and mental disorders. For these 
reasons, we are unable to provide exact guidance on the length and 
number of periods of abstinence to demonstrate whether DAA is material 
in every case. In some cases, the acute and toxic effects of substance 
use or abuse may subside in a matter of weeks, while in others it may 
take months or even longer to subside. For some claimants, we will be 
able to make a judgment about materiality based on evidence from a 
single, continuous period of abstinence, while in others we may need to 
consider more than one period.\26\
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    \26\ If, however, a claimant is abstinent and remains disabled 
throughout a continuous period of at least 12 months, DAA is not 
material even if the claimant's impairment(s) is gradually 
improving.
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    b. In all cases in which we must consider periods of abstinence, 
the claimant should be abstinent long enough to allow the acute effects 
of drug or alcohol use to abate. Especially in cases involving co-
occurring mental disorders, the documentation of a period of abstinence 
should provide information about what, if any, medical findings and 
impairment-related limitations remained after the acute effects of drug 
and alcohol use abated. Adjudicators may draw inferences from such 
information based on the length of the period(s), how recently the 
period(s) occurred, and whether the severity of the co-occurring 
impairment(s) increased after the period(s) of abstinence ended. To 
find that DAA is material, we must have evidence in the case record 
demonstrating that any remaining limitations were not disabling during 
the period.\27\
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    \27\ The DSM-IV-TR provides ``specifiers'' describing the length 
and nature of remissions. For example, the specifier for a sustained 
full remission applies if the claimant has not evidenced any of the 
criteria for dependence or abuse at any time for at least 12 months. 
We do not require that a period of abstinence satisfy the criteria 
for sustained full remission or any of the other specifiers in the 
DSM.
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    In the sections that follow, we provide more detail about these 
general principles.
    c. In addition to the length of the period, we must consider when 
the period of abstinence occurred.
    d. We may also consider the circumstances under which a period(s) 
of abstinence takes place, especially in the case of a claimant with a 
co-occurring mental disorder(s).
    i. Improvement in a co-occurring mental disorder in a highly 
structured treatment setting, such as a hospital or substance abuse 
rehabilitation center, may be due at least in part to treatment for the 
co-occurring mental disorder, not (or not entirely) the cessation of 
substance use. We may find that DAA is not material depending on the 
extent to which the treatment for the co-occurring mental disorder 
improves the claimant's signs and symptoms. If the evidence in the case 
record does not demonstrate the separate effects of the treatment for 
DAA and for the co-occurring mental disorder(s), we will find that DAA 
is not material, as we explain in Question 7.\28\
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    \28\ At the hearings and appeals levels of the administrative 
review process, ALJs and the Appeals Council may seek assistance 
from medical experts in interpreting the medical evidence regarding 
the separate effects of treatment for DAA and a co-occurring mental 
disorder(s).
---------------------------------------------------------------------------

    ii. A co-occurring mental disorder may appear to improve because of 
the structure and support provided in a highly structured treatment 
setting. As for any mental disorder, we may find that a claimant's co-
occurring mental disorder(s) is still disabling even if increased 
support or a highly structured setting reduce the overt symptoms and 
signs of the disorder.\29\
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    \29\ See, for example, section 12.00F in the mental disorders 
listings for adults, 20 CFR part 404, subpart P, appendix 1.
---------------------------------------------------------------------------

    iii. Given the foregoing principles, a single hospitalization or 
other inpatient intervention is not sufficient to establish that DAA is 
material when there is evidence that a claimant has a disabling co-
occurring mental disorder(s). We need evidence from outside of such 
highly structured treatment settings demonstrating that the claimant's 
co-occurring mental disorder(s) has improved, or would improve, with 
abstinence .\30\ In addition, a record of multiple hospitalizations, 
emergency department visits, or other treatment for the co-occurring 
mental disorder--with or without treatment for DAA--is an indication 
that DAA may not be material even if the claimant is discharged in 
improved condition after each intervention.
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    \30\ The symptoms and signs of a co-occurring mental disorder or 
even symptoms of some physical impairments will not necessarily 
abate with abstinence. Sometimes, withdrawal of the substance(s) may 
result in a worsening of the symptoms and signs attributable to the 
other impairment(s); for example, increased anxiety or pain.
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10. How do we evaluate a claimant's credibility in cases involving DAA?

    We do not have special rules for evaluating a claimant's 
credibility in cases involving DAA. Adjudicators must not presume that 
all claimants with DAA are inherently less credible than other 
claimants. We will apply our policy in SSR 96-7p and our regulations as 
in any other case, considering the facts of each case. In addition, 
adjudicators must consider a claimant's co-occurring mental disorder(s) 
when they evaluate the credibility of the claimant's allegations.

11. How do we establish onset in DAA cases?

    We do not have special rules for establishing onset in DAA cases. 
In general, disability onset is the earliest date on which the evidence 
shows that the claimant became disabled due to a medically determinable 
impairment and that DAA was not material.

12. Can failure to follow prescribed treatment be an issue in DAA 
cases?

    Yes, but it will rarely be necessary to consider the issue, and we 
will apply the policy only to a claimant's other physical or mental 
impairment(s), not the DAA.
    a. The requirement to determine DAA materiality is similar to our 
policy on failure to follow prescribed treatment. Like that policy, it 
considers whether a claimant would be disabled if DAA improved. 
However, the claimant does not need to have been prescribed treatment 
for the DAA or to follow it.\31\ Therefore:
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    \31\ See SSR 82-59. Our rules provide in part that, for failure 
to follow prescribed treatment to apply, the claimant must be 
``disabled'' and a treating source must have prescribed treatment 
that is ``clearly expected'' to restore the claimant's capacity to 
do substantial gainful activity. The claimant must also not have 
good cause for failing to follow the prescribed treatment.
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     When we find that DAA is material to our determination of 
disability, we do not consider whether a treating source has prescribed 
treatment for the DAA that is clearly expected to restore the 
claimant's ability to work. We have already determined that the 
claimant is not disabled because DAA is material, and we consider the 
issue of failure to follow prescribed treatment only when we find that 
a claimant is disabled.
     A finding that DAA is not material also implies that there 
is no treatment for the DAA that is ``clearly expected'' to restore the 
claimant's ability to work since the claimant would still be disabled 
in the absence of DAA. Moreover, we know of no treatments for DAA that 
are so sufficiently and uniformly effective that they could satisfy our 
requirement that the prescribed treatment be clearly expected to 
restore the ability to work.

[[Page 11946]]

    b. There are cases in which we can deny a claim for failure to 
follow prescribed treatment for an impairment(s) other than the DAA. In 
a case in which a claimant has both DAA and at least one other 
impairment, we may determine that:
     DAA is not material to our determination of disability; 
that is the claimant would still be disabled in the absence of DAA, but
     The claimant would not be disabled by his or her other 
impairment(s) if he or she followed treatment prescribed by a treating 
source for that impairment(s) that is clearly expected to restore the 
ability to work. The claimant must also not have good cause for failing 
to follow the treatment.
    The prescribed treatment in this case must be treatment that is 
specifically for the other impairment(s), not for the DAA, even if the 
treatment might also have beneficial effects on the DAA. For example, 
we cannot find that a claimant has failed to follow prescribed 
treatment for liver disease based on a failure to follow treatment 
prescribed for alcohol dependence. If the cessation of drinking would 
clearly be expected to improve the claimant's functioning to the point 
that he or she is not disabled, we would find that DAA is material to 
the determination of disability and deny the claim for that reason.

13. Who is responsible for determining materiality?

    The following adjudicators are responsible for determining 
materiality:
    a. At the initial and reconsideration levels of the administrative 
review process (except in disability hearings), a State agency 
disability examiner makes the finding whether DAA is material to the 
determination of disability. A State agency MC/PC is responsible for 
determining the medical aspects of the DAA analysis, such as what 
limitations a claimant would have in the absence of DAA.
    b. In disability hearings conducted by a disability hearing officer 
at the reconsideration level, the disability hearing officer determines 
whether DAA is material to the determination of disability.
    c. At the ALJ and Appeals Council levels (when the Appeals Council 
makes a decision), the ALJ or Appeals Council determines whether DAA is 
material to the determination of disability.

14. What explanations does the determination or decision need to 
contain?

    a. Adjudicators must provide sufficient information so that a 
subsequent reviewer considering all of the evidence in the case record 
can understand the reasons for the following findings whenever DAA 
materiality is an issue:
     The finding that the claimant has DAA;
     The finding that the claimant is disabled at step 3 or 
step 5 of the sequential evaluation process considering all of his or 
her impairments, including DAA.
     The finding that the claimant would still be disabled at 
step 3 or 5 of the sequential evaluation process in the absence of DAA, 
or the finding that the claimant would not be disabled at step 2, 4, or 
5 of the sequential evaluation process in the absence of DAA.
    A single statement that DAA is or is not material to the 
determination of disability by an adjudicator is not sufficient.
    b. As we have already indicated in answering other questions, an 
adjudicator is not always required to address every issue related to 
materiality in detail. For example, an adjudicator need not determine 
what a claimant's remaining limitations would be absent DAA if the 
claimant's other impairment(s) does not prevent the claimant from doing 
past relevant work even with DAA. See Question 5.
    c. Disability hearing officers, ALJs, and the Appeals Council (when 
the Appeals Council makes a decision) must provide their rationales in 
their determinations and decisions. State agency adjudicators may 
provide explanations in their determinations or on other appropriate 
documents, such as residual functional capacity assessment forms.

15. How should adjudicators consider Federal district and circuit court 
decisions about DAA?

    Our policies for considering Federal court decisions are set out in 
SSR 96-1p and 20 CFR 404.1585 and 416.985.
    a. General. We require adjudicators at all levels of administrative 
review to follow agency policy, as set out in the Commissioner's 
regulations, SSRs, Social Security Acquiescence Rulings (ARs), and 
other instructions, such as the Program Operations Manual System 
(POMS), Emergency Messages, and the Hearings, Appeals and Litigation 
Law manual (HALLEX). Under sections 205(a) and (b) and 1631(c) and (d) 
of the Act, the Commissioner has the power and authority to make rules 
and regulations and to establish procedures, not inconsistent with the 
Act, which are necessary or appropriate to carry out the provisions of 
the Act. The Commissioner also has the power and authority to make 
findings of fact and decisions as to the rights of any individual 
applying for payment under the Act. Because of the Commissioner's 
delegated authority to implement the provisions of the Act, we may, 
from time to time, issue instructions that explain the agency's 
policies, regulations, rules, or procedures. All adjudicators must 
follow our instructions.
    b. District court decisions. Under our longstanding policy, when a 
district court decision conflicts with our interpretation of the Act or 
our regulations, adjudicators must apply our nationwide policy when 
they adjudicate other claims within that district court's jurisdiction 
unless the court directs otherwise, such as in a class action.\32\
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    \32\ See SSR 96-1p. In a class action decided by a district 
court, we will issue instructions to adjudicators on how to apply 
the court's decision. Even in this circumstance, adjudicators must 
not interpret the decision for themselves because their 
interpretation may conflict with the agency's interpretation.
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    c. Circuit courts. If we determine that a circuit court's holding 
conflicts with our interpretation of the Act or our regulations, we 
will issue an AR explaining the court's holding, how it differs from 
our national policy, how adjudicators must apply the holding, and the 
situations in which the AR applies. Unless and until we issue an AR, 
adjudicators must follow our nationwide policy in adjudicating other 
claims within the circuit court's jurisdiction.
DATES: Effective Date: This SSR is effective on March 22, 2013.
    CROSS REFERENCES: SSR 82-59, ``Titles II and XVI: Failure To Follow 
Prescribed Treatment''; SSR 85-28, ``Titles II and XVI: Medical 
Impairments That Are Not Severe''; SSR 96-1p, Application by the Social 
Security Administration (SSA) of Federal Circuit Court and District 
Court Decisions; SSR 96-4p, Titles II and XVI: Symptoms, Medically 
Determinable Physical and Mental Impairments, and Exertional and 
Nonexertional Limitations; SSR 96-6p, Titles II and XVI: Consideration 
of Administrative Findings of Fact by State Agency Medical and 
Psychological Consultants and Other Program Physicians and 
Psychologists at the Administrative Law Judge and Appeals Council 
Levels of Administrative Review; Medical Equivalence; SSR 96-7p, 
``Titles II and XVI: Evaluation of Symptoms in Disability Claims: 
Assessing the Credibility of an Individual's Statements''; SSR 06-3p: 
Titles II and XVI: Considering Opinions and Other Evidence From Sources 
Who Are Not ``Acceptable Medical Sources'' in Disability Claims; 
Considering

[[Page 11947]]

Decisions on Disability by Other Governmental and Nongovernmental 
Agencies; and Program Operations Manual System (POMS) DI 23010.005, DI 
24505.001, DI 24505.005, DI 24515.013, DI 24515.065, DI 24515.066, DI 
26515.001, DI 28005.035-.050, DI 32701.001, DI 90070.050.

[FR Doc. 2013-03751 Filed 2-19-13; 8:45 am]
BILLING CODE 4191-02-P