Posted by Emily Fretwell |
In my experience, a Social Security disability claimant’s attorney must be proactive in presenting a case based upon obesity. The attorney must emphasize that this impairment combines with others to create an over-all impairment greater than the sum of the claimant’s impairments.
Obesity is common, serious, and costly. More than one-third of U.S. adults are obese. Obesity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer. Obesity-conditions that affect an estimated 97 million Americans are the second leading cause of preventable death in the United States. According to the American Heart Association and the American Stroke Association, the obesity epidemic in children continues to grow. Compared with1973 to 1974, the proportion of children 5 to 17 years of age who were obese was 5 times higher in 2008 to 2009. The obesity epidemic is disproportionally more rampant among children living in low income, low education, and higher unemployment households.
Obesity is an impairment which the Social Security Administration recognizes can be disabling. At one time, obesity was included in Social Security’s “Listings,” those impairments, which, if sufficiently severe in and of themselves, automatically entitle an individual to disability. On August 24, 1999, the Social Security Administration deleted listing 9.09, Obesity, from the Listing of Impairments in 20 CFR, subpart P, appendix 1 (the listings).
However, at that time, the Social Security Administration made changes to other listings to ensure that obesity is still appropriately addressed.
“In the final rule, we added paragraphs to the prefaces of the musculoskeletal, respiratory, and cardiovascular body system listings that provide guidance about the potential effects obesity has in causing or contributing to impairments in those body systems. See listings sections 1.00Q, 3.00I, and 4.00F. The paragraphs state that we consider obesity to be a medically determinable impairment and remind adjudicators to consider its effects when evaluating disability. The provisions also remind adjudicators that the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately. They also instruct adjudicators to consider the effects of obesity not only under the listings but also when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual’s residual functional capacity.”
The language quoted above is from SSR 02-1p, effective on May 1, 2000, which is the rule by which the Social Security Administration determines that an individual’s obesity may be considered a disabling impairment. The rule goes on to describe when “obesity” will be considered a disabling impairment. Generally, the SSA will look to the criteria established by the National Institutes of Health (NIH) for the diagnosis of obesity in its Clinical Guidelines on the Identification, Evaluation, and Treatment of Over weight and Obesity in Adults (NIH Publication No. 98-4083, September 1998). SSR02-1p states that “[t]hese guidelines classify overweight and obesity in adults according to Body Mass Index (BMI). BMI is the ratio of an individual’s weight in kilograms to the square of his or her height in meters (kg/m2). For adults, both men and women, the Clinical Guidelines describe a BMI o f25-29.9 as ‘overweight’ and a BMI of 30.0 or above as ‘obesity. ’”The rules goes on to note that “[t]he Clinical Guidelines recognize three levels of obesity. Level I includes BMIs of 30.0-34.9. Level II includes BMIs of 35.0-39.9. Level III, termed “extreme” obesity and representing the greatest risk for developing obesity-related impairments, includes BMIs greater than or equal to 40. These levels describe the extent of obesity,”
The rule, of course, acknowledges that the guidelines cannot be considered cut and dried because a person with highly developed muscles may be considered obese under these guidelines when he is not actually obese and because it is possible for someone whose BMI is below 30to have obesity if too large a percentage of the weight is from fat.
How does Social Security determine whether a person is qualified for disability on account of obesity? To understand how obesity is considered, one must understand that the Social Security follows a five-step sequential analysis in determining whether a person is wholly disabled.
Step One: At this step Social Security asks whether the person is engaged in substantial gainful activity, i.e., is s/he working for money and making more than $1010 per month? If s/he is, then the process stops because regardless of anything else, the person is not qualified for disability.
Step Two: Steps two and three both concern the individual’s impairment. At step two the question is whether the person has a medically determinable severe physical or mental impairment. If so, Social Security goes on to step three. If not, the process stops, and the person does not qualify.
Step Three: At this step Social Security asks whether the individual’s impairment is so severe that it meets or equals a Listing. If so, the individual automatically qualifies for disability. If not, Social Security proceeds to step four. One may win disability at step three, but one cannot be disqualified at that step.
Step Four: Just as steps two and three both concern the individual’s impairment profile, steps four and five concern his vocational profile and the impact of his impairments upon his/her ability to work. At step four, the Social Security Administration determines the claimant’s “residual functional capacity.” Taking into consideration the limitations imposed upon an individual by his/her impairments, what is the most that s/he can do on an 8-hour per day, 5-day a week basis or the substantial equivalent? Answering this question is call the “residual functional capacity assessment” (RFC). At step four, the Social Security Administration next identifies the claimant’s past relevant work—work which s/he performed over the 15 years preceding disability at the “substantial gainful employment” (SGA) level. Next the Social Security Administration compares those profiles: the claimant’s RFC with his/her past relevant work, both as s/he actually performed it and as it is generally performed in the national economy as described in the Dictionary of Occupational Titles published by the United States Department of Labor. If the claimant’s RFC does not prevent the performance of past relevant work, either as actually performed or as performed in the national economy, the claimant is not qualified for disability and the inquiry stops.
Step Five: If the individual cannot perform his/her past relevant work, then the question is whether, given the individual’s RFC, skill set, education and experience, s/he can perform other work as ordinarily performed in the national economy. If not, the claimant has qualified for social security disability. If so, s/he is disqualified.
For obesity to be considered, it must qualify, first, as a medically determinable impairment at step two of the sequential process. Generally, Social Security will accept the diagnosis of the claimant’s physician. If there is no diagnosis, but the medical record contains sufficient data to make a calculation, Social Security will do a BMI calculation and determine whether the individual qualifies as “obese.” As stated above, there is no Listing for obesity at step three, but SSR 2-01p acknowledges that an individual’s obesity may be so severe that in combination with another impairment that is in the listings, it causes the individual to meet the Listings. “This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting correlated impairments, including mental disorders.”
Finally, at steps four and five of the analysis, the Social Security Administration will consider obesity in determining the claimant’s residual functional capacity. Excess weight may affect the individual’s ability to sit, stand, walk, lift, carry, push, pull, climb, balance, stoop and crouch, manipulate objects, and to tolerate extreme heat, humidity, or hazards. Obesity may cause sleep apnea, sleeplessness, and problems with concentration, memory and the ability to sustain activities on a regular and continuing basis, i.e., 8 hours per day, 5 days per week.
In my experience, a claimant’s attorney must forcefully present obesity as an issue. The key to a successful presentation is to tie this impairment to the effects of other impairments which the claimant may have and to emphasize that the impairments combine to create an over- all impairment greater than the sum of the parts. You’ll want to hire the best Missouri social security attorney you can find. We are here to help.
– Paul Graham