Smoking and Disability

Years ago I had a COPD claimant who was a heavy smoker.  At his Social Security Disability Hearing in Chattanooga, the Judge told me repeatedly that he did not think it was appropriate to award SSDI benefits to a claimant who smoked and was disabled due to COPD.  I managed to convince the Judge to rule in our favor because I felt like it would be inappropriate for an ALJ to deny such a claim unless the condition was caused by drug or alcohol.  This week I read an article in the NOSSCR publication (Volume 33, No. 12 -December 2011) addressing this issue.  In Deso v. Astrue, 2011 U.S. Dist. Lexis 137646 (D.Vt. Nov. 29, 2011), the district court held that “it was legal error for the ALJ to base his negative credibility determination primarily on failure to stop smoking. . . .”  The District Court relied upon a 7th Circuit decision in stating: “This is an unreliable basis on which to rest a credibility determination.”

Another related issue to credibility is non-compliance. (See 20 CFR 404.1530). The above referenced edition of NOSSCR Social Security Forum also discussed the Shramek v. Apfel, 225 F.3d 809 (7th Cir. 2000) decision, which basically states that there must be evidence to suggest that if the claimant stopped smoking he/she would no longer be disabled.

On the issue of “severity” and smoking, see Waters v. Astrue, No. 5:10-cv-110 (D.Vt. May 17, 2011).

If you are disabled due to COPD and you would like to talk to a Georgia and/or Tennessee Disability Lawyer, feel free to contact my office.  My contact information can be found by clicking the following link:  The Hamilton Firm

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About tngadisabilitylawyer
Disability Lawyer in Tennessee and Georgia.

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