Monthly Archives: May 2014

The Impact of Substance Abuse in a Social Security Disability Case

Alberts Law, Social Security Disability, ,

A person cannot be found disabled by the Social Security Administration due to substance abuse, whether it involves drug addiction or alcoholism. However, a person can be disabled despite the use of drugs or alcohol. The key legal issue is if substance abuse is a “contributing factor material to the determination of disability.”

 

Another issue with substance abuse involves the mindset of some Administrative Law Judges, who often do not want to find someone who uses drugs or alcohol disabled. Deciding that a person who has a history of using drugs or alcohol is not disabled regardless of any others facts in a case is a misapplication of the law, but it can occur.


This is a bigger problem when the history of substance abuse is more recent or ongoing. However, even if drug abuse or alcoholism is ongoing, you still could be disabled if you have other impairments that prevent you from working. It is the impact of substance abuse on your other impairments that must be considered under current Social Security law.

 

During a hearing, an Administrative Law Judge (ALJ) goes through five steps in evaluating your disability claim. In most cases, if you are found disabled due to physical or mental impairments resulting in limitations that make full-time work of any kind impossible, then you are entitled to disability payments. However, when alcohol or other drugs enter the picture, you may be found to meet the definition of disability during the five-step sequential evaluation, but you face an additional question that could prevent you from receiving those disability payments: Is substance abuse a contributing factor that is material to the finding that you are disabled? What this really is asking is whether you would be unable to work on a full-time basis if you stopped using drugs or alcohol. As long as your work-related limitations that remain after the impact of any substance abuse is removed make you unable to work, you are disabled.

 

According to the Code of Federal Regulations, when substance abuse is involved, the ALJ at your hearing has to look at your current physical and mental impairments that caused limitations in your ability to function at work and then decide which of them would continue to exist even if you stopped using drugs or alcohol. If at least one impairment remains that causes limitations that are disabling, then you are disabled regardless of the impact of substance abuse on other impairments. If no limitations from any of your impairments remain that would leave you unable to work after the impact of the use of alcohol or other drugs is removed, then substance abuse is a contributing factor material to the determination of disability — this means is that you cannot be found disabled.

 

It is important to note that the cause of any of your impairments does not matter. For example, you could have cirrhosis of the liver due to alcoholism, and the cirrhosis may prevent you from being able to work. If you no longer drink, then there is no need to consider the impact of continued use of alcohol. You could be found disabled by the Social Security Administration despite the fact that substance abuse caused the disabling condition.

 

However, when you have a potentially disabling condition but your substance abuse is ongoing, the situation becomes more complicated. The general belief is that you would bear the burden of proving that, even if you stopped using alcohol or other drugs, you would be disabled. This makes the determination of disability difficult under these circumstances.

 

Ultimately, not using drugs for a period of time is the strongest proof that substance abuse is not the reason that you should be found disabled. There is no “bright line” test for how long would be long enough. Of course, the longer the period involved, the better for your case because there will be more evidence of your actual condition without the effect of any continuing substance abuse. This helps to eliminate speculation and guesswork regarding the impact of alcohol or other drugs. If you remain incapable of working after you have been clean for some period of time, your case becomes much easier to prove. You would be wise to consider this before you apply for disability. Remember, if you really believe that you are disabled and that substance abuse does not contribute to this disability, you do not want to give the Social Security Administration an excuse to deny your claim.

The Need for an Estate Plan

Alberts Law, Estate Planning, ,

Everyone needs an estate plan. Due to the range of decisions and situations that such a plan can cover, you shouldn’t let a lack of property or wealth keep you from addressing this. An estate plan generally includes a number of documents, and only some of these focus on transferring wealth when you die.

 

Of course, one of the essential pieces is a Last Will and Testament. This is important for certain transfers of property but also can deal with other topics, such as burial arrangements. The second essential part of your estate plan is a Durable Power of Attorney, although it basically is effective only while you are living. You could choose someone to make financial decisions or, at least, handle your financial affairs, such as paying bills, when you are unable to do these things. A Medical Power of Attorney can provide authority over some medical decisions when your medical condition prevents you from speaking for yourself.

 

A final essential element in every estate plan is commonly known as a Living Will (or Advance Directive). It permits you to make decisions regarding the medical treatment and care that you would want when you can no longer communicate your wishes and are not likely to recover in the opinion of doctors who have examined you while you have been in this condition. You could name a surrogate decision maker, but – if a decision is covered in the Living Will – you can require that your surrogate follows your wishes.

 

The need for a Power of Attorney and a Living Will may be more understandable than the need for a Will if a person has does not own much. However, your Last Will and Testament can provide valuable information, regardless of the size of your estate. You may have items that have sentimental value to family members or even a small amount of cash that you want a particular person to have after your death. A Will can be used to make your intent clear. It also can provide other information; for example, you can name the person you want to handle the necessary activities that follow a person’s death, including handling taxes and your final expenses. You also must remember that, while your Will can make your wishes clear, the necessary person has to have access to it in order for it to be effective.

 

While a Will is important in transferring ownership of property to others, an estate plan can use other methods to do this. Each possibility has positive and negative points that are best reviewed with a professional. One method is to set up a joint account with the right of survivorship, which avoids the probate process but not necessarily the so-called death taxes (such as Pennsylvania’s inheritance tax). Other assets, including a life-insurance policy, can name beneficiaries so probate again can be avoided. Another possibility with life insurance is to use it to fund a trust as part of your estate plan.

 

Trusts of various types can be used for a variety of purposes. There are trusts that are intended to reduce the tax bill for your estate and for others – this is a complicated area that’s beyond the scope of this post, but it may be a realistic consideration depending on your circumstances. An example is a “credit-shelter” trust that a wealthy spouse might want to shield a surviving spouse’s estate from a large federal estate tax bill later on.

However, trusts are not just a tool of the rich and can be created for purposes that don’t focus on protecting wealth. For example, you may have a child who receives Medicaid (or, as it is known in Pennsylvania, Medical Assistance), which limits income and resources that your child can have while retaining eligibility. You could decide to disinherit your child to avoid the loss of these benefits, but you might consider a “supplemental needs” trust in your estate plan. Basically, this does not permit payments that would replace government benefits but can pay for other things to supplement what your child receives from public sources. A carefully drafted trust would make this possible.

 

Estate planning can even take place through gifts while you are alive and through post-mortem planning, such as a disclaimer by a beneficiary or an heir of something that she would receive so that it goes to someone else. Disclaimers often are used based on tax implications. With the numerous potential aspects of an estate plan, a person often benefits from consulting with a professional about the available options. Even the seemingly simplest estate can benefit from a review of an individual’s objectives and the consideration of ways that you might be met.

 

For the moment, there is one final thought to keep in mind. You never should view an estate plan as a final product. With time, changes occur in a life. The purpose of the plan may change if you get married or divorced, for example. Laws also change, and your plan may no longer meet your tax-planning goals when new tax laws are passed. An estate plan should be reviewed every few years, at least, so that it remains relevant to your current circumstances. No matter how simple or complex an estate plan may be, you need to make sure that it is one that you can live with as time goes by.