Disability Claimant’s Inability to Pass Employer’s Mandatory Drug Test Policy Due to Pain Medications Results in Award of Disability Benefits

Our long term disability lawyers only handle disability insurance claims against insurance companies; however I thought the findings by the 9th Circuit Court of Appeal in the case of Berry v. Astrue, could easily be applied to any long term disability insurance claim. I have listed below the history of the case and highlights of the court’s decision in deciding to reverse the disability claim denial.

In September 2005, Daniel Berry, a military veteran and former commercial courier driver born in 1959, filed a claim for disability insurance benefits under 42 U.S.C. § 423 and supplemental security income benefits under 42 U.S.C. § 1382. His claim was denied by the government upon a finding that he could return to his past relevant work and therefore was not disabled. That finding was based in part on the conclusion that whether Berry could pass a drug test was irrelevant to the determination of disability, even if Berry could prove that he needed to be able to pass such a test to perform his past relevant work. The 9th Circuit United States Court of Appeals disagreed with the claim denial and remanded for further administrative proceedings. The court specifically stated, “If a drug prescription disqualifies a claimant from performing his past relevant work, he is not capable of returning to that work.“


Before his alleged disability, Daniel Berry worked about 14 years as a military communications and computer supervisor, followed by about 6 years as a courier driver. He left his job as a courier driver on June 10, 2000.

As a veteran, Berry sought treatment for various medical conditions through the Department of Veterans Affairs (VA). In September 2001, the VA determined that Berry was “entitled to individual unemployability” status as of July 1, 2000, finding that his “main difficulty with unemployment is his pain regime and that potential employers would not tend to hire him due to his inability to pass a drug test due to his pain medications, abnormal gait and limitations due to his service connected low back disability.”

Berry applied for social security disability benefits in September 2005. He claims that he has been disabled since his last date of employment as a courier driver in June 2000 and that his disability is a result of chronic low back pain, degenerative disk disease, degenerative arthritis on both hips, bilateral knee degeneration, sleep apnea, depression, diabetes, obesity, hearing loss, hemorrhoids and night sweats.

“If it is true, as Berry offered to prove, that Berry’s prescribed medication regime to treat his potentially disabling condition would categorically prevent him from obtaining work as a courier by rendering him physically unable to pass a drug test that is mandatory across employers, then he cannot meaningfully be said to be capable of working as a courier. A mandatory requirement that employers cannot hire people with a certain level of pain medication in their blood is in essence a physical demand of the job.”

In private long term disability insurance cases, disability companies are required to consider how the side effects of medication affects a claimant’s ability to perform the duties of their occupation. This case could certainly be used in the future by disability claimants if their employer has a mandatory drug policy or if the there are laws that require drug testing for the specific occupation.

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