Over the past few weeks, I have been asked --on several occasions--, to comment on the implications of the use of medical marijuana in the Social Security Disability process. This is definitely a hot new issue. I'm sure that there is going to be a lot of debate on Medical Marijuana (MMJ) and SSDI in the upcoming months. I'm particularly curious as to what other Social Security lawyers are telling their clients and whether disability claimants are fully aware of the possible implications of MMJ in their cases.
I must confess that I am not particularly thrilled about the use of marijuana by some of my clients, regardless of whether the use is medical or recreational. Its not that I'm old fashioned or uncool. (Am I?) It's that I'm a pragmatic kind of guy. My role as a Social Security Disability lawyer is to obtain for my clients the maximum amount of benefits allowed by law, not to make political statements or to advocate in favor of alternative medical treatments.
Due to these concerns brought recently to my attention, I would like to use this week's blog to discuss some of the pros and cons of medical marijuana in the context of SSDI or SSI cases.Some of the Cons...
- Bear in mind that Social Security is a federal program and that federal law does not recognize the use of medical marijuana. Understand that under federal law the use of marijuana is still illegal. Social Security judges (ALJ's) are required to abide by federal law. Potentially, an ALJ could find that a claimant and/or a doctor who repeatedly breaks federal law is not totally credible.
- I usually like to argue that medication side effects are contributing to my client's disability. Given the fact that marijuana is not a legal medication under federal law, I don't think I'm going to be able to argue that being constantly "high on pot" is a symptom that contributes to my client's disability.
- I believe that, in many instances, medical marijuana can be very detrimental to a claimant who is seeking to obtain benefits based on a mental disability. I often argue that my client's unusual behavior is evidence that he or she suffers from mental illness. Unfortunately, if a person is under the influence of MMJ, it might be harder to asses the real reason why the person is acting strangely. Keep in mind that there is a the popular belief that people act "weird" when they smoke marijuana if even when that is not the case in most circumstances.
- I am convinced that, in some instances, pot is the only medication that really works. Under these circumstances, the claimant must be prepared to tell the judge that he or she tried all other traditional medications available and that none of them offered any relief of the symptoms. This scenario could ultimately bolster a Social Security Disability claim. However, it is important to point out that under these circumstances, the claimant must have sufficient medical records to be able to make this argument.
- Finally, under the latest Social Security ruling on drug addiction and alcoholism (SSR 13-2p), marijuana use is not material to a Social Security Disability case unless its use is considered an addiction and is "a contributing factor material to the claimant's disability". (See my blog from Feb. 25, 2013) I would argue that under this ruling, a judge cannot consider medical marijuana at all when making a decision, unless there is evidence that the marijuana use raises to the level of an addiction and that marijuana is contributing to the claimant's limitations.