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Obesity in Disability Cases

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Social Security Ruling (SSR) 02-01p sets forth the manner in which obesity is treated in adjudicating disability cases.

In 1999, obesity was deleted from social security’s listings of impairments that are presumed disabling. It was formerly set forth at listing 9.09. However, obesity can still qualify as a medically determinable impairment for disability purposes, and its limiting effects on a person’s ability to sustain full-time work must be considered in adjudicating a claim for benefits.

When listing 9.09 was deleted, new paragraphs were added to the prefaces of the listings for the musculoskeletal, respiratory, and cardiovascular systems, recognizing the limiting effects obesity can have on impairments of these body systems.

SSR 02-1p answers 14 questions regarding the consideration of obesity in disability claims.

 

  1. What is obesity? Obesity is a complex, chronic disease characterized by the accumulation of excess body fat. In one sense, its cause is simple — more calories are taken in than are expended. However, in another sense, its causes are complex and may include genetic, environmental, metabolic, and behavioral factors. The genetic factors, in particular, are not well understood. Obesity is measured in terms of body mass index (BMI), which is the ratio of an individual’s weight to the square of his or her height in meters (kg/m2). A BMI between 25 and 29.9 is generally characterized as “overweight.” A BMI over 30 is generally characterized as “obese”, although it is not always that simple, as a person with more muscle than average may have a BMI over 30 without being obese. Treatment for obesity is notoriously difficult and often unsuccessful. While there may be transitory weight loss, the lost weight is often quickly regained. Thus, obesity is commonly a chronic disorder.

 

  1. How does obesity affect physical and mental health? Obesity can have an effect on impairments of most major body systems. It commonly complicates or leads to disorders of the musculoskeletal, respiratory, and cardiovascular systems. It increases the risk for type II (adult onset) diabetes mellitus (even in children), osteoarthritis, sleep apnea, dyslipidemia (excess fatty substances in the blood), peripheral vascular disease, heart disease, gall bladder disease, and hypertension. It is associated with certain types of cancer and other physical impairments as well. It can lead to depression, as well as lack of mental clarity or daytime drowsiness, particularly when associated with sleep apnea.

 

  1. How does social security consider obesity in connection with the five-step sequential evaluation process? An adjudicator must determine if there is a medically determinable impairment of obesity, and whether or not it is severe. The adjudicator must determine whether or not the person’s impairments, either singly or in combination, meet or medically equal one of the listing impairments. Finally, the person’s residual functional capacity (RFC) must be assessed in order to determine if the person can do his or her prior relevant work (substantial work they have done for profit in the past 15 years prior to the onset of their disability), or any full-time jobs existing in significant numbers in the national economy.

 

  1. How is obesity established as a medically determinable impairment? Social Security will generally rely on the diagnosis of a person’s treating physician in establishing obesity as a medically determinable impairment. If there is no formal diagnosis, but clinical notes show consistently high BMI measurements, the adjudicator may contact the treating source for clarification, or use their best judgment to decide this issue based on the medical evidence. Social Security will not typically purchase a consultative exam to determine this issue, but instead will rely on the longitudinal record showing the person’s weight over time.

 

  1. Can Social Security find a person disabled based on obesity alone? Although obesity is no longer a listed impairment (ever since 1999, when the former listing 9.09 was deleted), its severity may medically equal on of the listing (or functionally equal the listings in the case of a childhood SSI claim). If it does not medically equal one of the listings, then its functional limitations are considered in determining whether the person retains the capacity to do his or her prior work, or any full-time jobs existing in significant numbers in the national economy.

 

  1. When is obesity a “severe” impairment? Obesity is a severe impairment when it results, either by itself or through interaction with other impairments, in more than minimal limitations in the person’s ability to do basic work activities. This does not necessarily correlate with any particular BMI measurement; rather, an individual assessment is made in each case.

 

  1. How does social security evaluate obesity at step three of the sequential evaluation process for disability? Although obesity in itself can no longer meet a particular listing, depending on the degree of its severity, it may medically equal one of the listings. For example, obesity may cause great difficulties in ambulating effectively, thus substituting for the “major dysfunction of a joint due to any cause” and its associated limitations described in the musculoskeletal listings. In addition, obesity may interact in combination with other impairments to meet a listing. Obesity can be particularly taxing on the musculoskeletal, cardiovascular, and respiratory systems. It can also exacerbate mental illnesses.

 

  1. How does social security evaluate obesity in assessing RFC? As always, social security will assess the effects of obesity on the person’s ability to meet the seven exertional strength demands of work — sitting, standing, walking, lifting, carrying, pushing, and pulling. Obesity may also cause nonexertional limitations that are not always obvious, such as daytime drowsiness or lack of mental clarity from sleep apnea, or difficulty concentrating due to increased depression. Also, obesity may have an impact on an individual’s stamina, or ability to sustain work activities on a regular, ongoing basis — 8 hours a day, 5 days a week, or an equivalent work schedule.

 

  1. How can social security consider obesity as a factor in RFC when SSR 96-8p says that age and body habitué are not factors in assessing RFC? If one looks carefully at this SSR, it days that it is incorrect to find that a person has limitations beyond those caused by his or her medically determinable impairments. If obesity is a medically determinable impairment, its limiting effects may be considered.

 

  1. How does the elimination of Listing 9.09 affect those whose claim was pending on October 25th, 1999? In keeping with social security’s usual custom regarding any change in the listings, this change will affect the entire claim for those claims pending at the time the change was made. However, a different rule applies for those who were already adjudicated disabled prior to the change. Social Security does periodic continuing disability reviews (CDR). Social Security will not find that a disability has ended based on a change in the listings.

 

  1. What amount of weight loss constitutes “medical improvement”? A loss of less than 10% of one’s body weight is considered minor and will not represent medical improvement. Weight often fluctuates over time. A sustained weight loss of 10% or more of body weight over a continuous twelve-month period represents medical improvement. Of course, social security will look at the person’s other impairments ad well, in order to determine if enough medical improvement has occurred to restore the ability to work.

 

  1. What are the goals and methods of treatment for obesity? The goal of treatment is not to achieve a “normal” weight, but rather to achieve a reasonable amount of weight loss in order to improve one’s health and restore a higher quality of life. Treatment in many cases consists of behavior modification (diet and exercise), and in some cases, medicine. Doctors typically only recommend surgery in cases where obesity has reached level III (BMI of 40 or higher), and then only as a last resort. Weight loss surgery modifies the stomach and intestines, and is not without potential complications, such as “dumping syndrome”, or rapid emptying of the stomach’s contents accompanied by various signs and symptoms.

 

  1. How does social security evaluate failure to follow prescribed treatment in disability cases? Social Security will find failure to follow prescribed treatment only when all of the following conditions are met:

The person has an impairment that meets the definition of disability, including the duration requirement;

A treating source has prescribed treatment that is clearly expected to restore the person’s ability to perform substantial gainful activity; and

The evidence shows that the person failed to follow the prescribed treatment without a good reason.

See SSR 82-59.

A treating source’s statement that a person should lose weight or is advised to get more exercise is not prescribed treatment.

Some good reasons for not following prescribed treatment are:

  • The treatment violates the person’s religious teachings;
  • The person is unable to afford treatment which he or she is willing to accept, but for which free community resources are unavailable;
  • The treatment carries a high degree of risk because if the enormity or unusual nature of the procedure.

Medicare and most insurance plans do not cover the cost of behavioral or drug therapy for obesity, so an individual who might benefit from these therapies may be unable to afford them. Not enough is known about the potential long-term effects of weight loss drugs, so a person may understandably forego using them. Also, because of the risks and potential side effects of weight loss surgery, social security will not find failure to follow prescribed treatment when a person chooses not to undergo surgery.

And that’s the skinny on social security’s obesity regulations.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

Contact a Salt Lake City Attorney Committed to Protecting Your Rights

When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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