Medical Marijuana Creates Concerns for SSD Applicants

December 14th, 2016 by Attorney John Colvin

Tennessee SSD Attorney

As of November, 28 states, the District of Columbia, Guam, and Puerto Rico had enacted laws allowing for public medical marijuana programs. But federal law still classifies marijuana as a Schedule I drug, meaning it has no accepted medical use and a high potential for abuse. This conflict between state and federal laws may create problems for some Social Security Disability applicants.

The Social Security Administration does not consider people to be disabled if their drug addiction or alcoholism (DAA) is their only severe disability. In other words, if a person has a minor physical disability that – absent drug or alcohol abuse – would not be severely disabling, the SSA would likely deny SSD benefits, because DAA is considered “material” to the disability.

DAA is considered to be “not material” if an individual meets the definitions of disability, regardless of drug addiction or alcohol abuse. So, for example, DAA would not preclude a person who was born blind from receiving disability benefits. Even if DAA caused a condition, such as cirrhosis of the liver, an SSD applicant could still receive benefits if the condition is irreversible or not expected to improve.

In cases where disability recipients use medical marijuana, the SSA may infer that marijuana usage is material and that benefits should be discontinued. To counter that argument, the SSD recipient will likely need legal help and medical testimony that proves marijuana usage is not a factor contributing to the disability.

Challenges for Doctors

The Journal of the American Medical Association reports that evidence indicates marijuana is effective in treating chronic pain, nerve pain, and muscle spasms, and each state lists the medical conditions for which marijuana is an approved treatment. But because marijuana is an illicit drug under federal law, physicians cannot legally “prescribe” it, even in states where medical marijuana is legal.

This conundrum creates another possible problem for SSD recipients. The SSA periodically reviews cases to determine whether recipients are following their prescribed treatment plans. People who aren’t following prescribed treatment may lose their benefits. The SSA’s Office of the Inspector General issued a 27-page report on that topic, and it lists the three factors that must exist for a determination that a person is not following prescribed treatment:

  • The evidence establishes the individual is disabled according to SSA’s criteria absent any consideration of failure to follow prescribed treatment
  • Prescribed treatment is expected to restore capacity to engage in substantial gainful activity (or gainful activity, as appropriate)
  • There is no evidence that shows good cause for failure to follow prescribed treatment (good cause could be a person’s inability to afford their medication or an inability to undergo surgery because of intense fear).

One question that’s sure to come up in disability determination cases is whether the use of marijuana is counter to one’s prescribed treatment.

Doctors Advocating for Legalization

In April, a group of doctors and medical school faculty members formed Doctors for Cannabis Regulation, a group in favor of legalizing marijuana for recreational use. DFCR says that legalizing and regulating marijuana would be a boon for society, reducing the number of drug-related arrests and protecting communities from violent drug dealers. (DFCR points out that it does not advocate the use of marijuana, just its legalization.)

In the coming years, it’s possible more states will enact laws authorizing medical marijuana, and perhaps that trend will convince federal authorities to decriminalize marijuana, at least for medical use.

Licensed to Practice in Tennessee & Alabama