» The Evaluation of Obesity under the Social Security Act
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The Evaluation of Obesity under the Social Security Act

The following article provides general information on the guidelines used when the Social Security Administration evaluates obesity since October 25, 1999. Usually, the obesity issue is interconnected with ailments or “Listed Impairments” under the Social Security Act, to include but not limited to the following: diabetes, musculoskeletal impairments and pulmonary or breathing dysfunctions where spirometry testing is necessary.

The Social Security Administration removed obesity from the Listing of Impairments effective October 25, 1999. 64 Fed. Reg. 46,122 (1999). Currently, Social Security Ruling (SSR) 02-1p, outlines the evaluation of disability in regards to obesity. SSR 02-1p acknowledges that obesity can play a role in equaling a “Listing” or “Listed Impairment” under the Social Security Act. Adjudicators and judges should consider the cumulative effects not only when considering whether a claimant’s impairments meet or medically equal the Listings but also when assessing residual functional capacity. See, 20 C.F.R. Pt. 404 Subpt. P, App. 1 foll § 404.1599. (West 2002) of the Listing of Impairments. Obesity at any level in the disability application process, because it is a medically determinable impairment, must be considered in assessing a residual functional capacity (RFC) of the claimant. See, SSR 02-1p, 20 C.F.R. §404.1523.

Obesity is generally evaluated using the body mass index (BMI). For example, under the BMI chart the criteria for “obese” could be a person who is 64 inches tall and weighed at least 181 pounds. A person who is 64 inches tall and 230 pounds could meet the BMI criteria for “extreme obesity”. Often the claimant may be questioned via the adjudicator or judge about following the treating physician’s weight loss prescription. Usually, the questioning centers on the failure of the weight loss regime.

Acceptable Reason for Failure to Follow Prescribed Treatment

Under 20 C.F.R. Pt. 404 §1530 the claimant must follow prescribed treatment by the treating physician if such treatment can restore the ability to work. There are several exceptions to the general guideline. For example, under Social Security Ruling (SSR) 82-59 a claimant’s limited resources may only avail her or him the opportunity to afford periodic palliative care and thus conclude in a failure of the weight loss regime. See also,Gamble v. Chater, 68 F.3d 319, 321 (9 th Cir. 1995); Dawkins v. Bowen, 848 F.2d 1211, 1213 (11 th Cir. 1988). Further, under 20 C.F.R. Pt. 404 §1530(4) such weight loss treatment may be alleged as inconsistent where a claimant did not fully understand the importance of weight loss care and the interconnection of other ailments, e.g, diabetes. Often, the claimant’s inability to understand the weight loss regime can be supported by a claimant’s impaired mental state, e.g., limited education, below average intelligence, severe depression, etc.

It is important that the allegation of obesity as a medically determinable impairment is interconnected with the medical criteria within the Listings under the Social Security Act. Often, the adjudicator or judge should be prompted or reminded to consider the claimant’s combined impairments, e.g., obesity and diabetes, which restrict her or him from engaging in any substantial gainful activity. See, 42 U.S.C. § 416(i); 20 C.F.R. §§ 404.1523, 404.1527; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.1996) (the ALJ should consider how the combination of the claimant’s impairments affects the claimant’s ability to do basic work activities).

By: David W. Magann, Esq.

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