Obesity and Disability
Obesity is a national epidemic and contributes significantly to the number of disability claims adjudicated under Social Security’s disability program. The Centers for Disease Control (CDC) reports that 30% of U.S. adults 20 years of age and older – over 60 million people – are obese.
Because obesity is so prevalent among disability applicants, I’m writing this article to show how to use Social Security’s latest ruling on obesity to improve the chances of a favorable decision in adult obesity claims.
After Social Security deleted the old 9.09 obesity listings on (10/25/99), it issued two rulings for evaluating obesity. SSR 02-1p was issued on (9/12/02) superseding SSR 00-3p issued on (5/15/00).
Important issues in SSR 02-1p are discussed below.
Obesity as an impairment
- SSA considers obesity a medically determinable impairment.
- Adjudicators must consider the effects of obesity when evaluating disability.
- The combined effects of obesity with other impairments can be greater than the effects of each impairment considered separately.
Body Mass Index (BMI)
National Institute of Health (NIH) Clinical Guidelines classify overweight and obesity in adults according to BMI, the ratio of weight in kilograms to the square of height in meters (kg/m2)
To download a handy BMI table with corresponding heights and weights, click on the link below.
“Overweight” - BMI 25-29.9
“Obesity” - BMI of 30.0 or above
NIH Clinical Guidelines recognize three levels of obesity:
- Level I - BMI 30.0-34.9
- Level II - BMI 35.0-39.9
- Level III – BMI greater than or equal to 40
In my experience, decision makers are more likely to give significant weight to Levels II and III obesity as a limiting factor in obesity claims. This is especially true for Level III, which is considered “extreme" obesity, and indicates the greatest risk for obesity-related impairments.
NOTE: Though these levels do not correlate with a specific degree of functional loss, decision makers tend to consider that the higher the Level of obesity, the higher the likelihood of associated functional restrictions.
I often used the factors of Level II, and especially Level III obesity, to justify further reducing the RFC, which sometimes resulted in a medical-vocational allowance. And I also used those levels, especially Level III, to justify equaling a listing. I cannot remember getting a Quality Assurance (QA) return when using that rationale appropriately. Despite what someone else may tell you, consideration of the BMI in obesity cases is important in the Social Security disability evaluation. Therefore, if obesity is a factor in the disability claim, always consider the BMI and its associated level, with its potential impact on function.
Unsuccessful treatment is common
This SSR recognizes that treatment for obesity is often unsuccessful. And even if treatment results in weight loss at first, weight lost is often regained. In my opinion, this concept is meant to keep decision makers from assessing inappropriate durational denials based on anticipated weight loss. It is especially important for representatives to point out cases in which an applicant has always been obese, despite treatment or efforts to lose weight.
Impairments in body systems
This SSR goes on to say that obesity increases the chances of developing impairments in almost all body systems, especially the cardiovascular, respiratory, and musculoskeletal systems. Obesity is also associated with endometrial, breast, prostate, and colon cancers.
A majority of significantly obese applicants I reviewed suffered from depression, so keep this in mind when presenting your case.
A common associated impairment is obstructive sleep apnea, a condition in which the body does not get enough oxygen due to blocking of the airway when sleeping. This can have wide ranging effects including excessive daytime sleepiness, heart failure, cardiac arrhythmias, and chronic headaches. There may be subtle or even dramatic loss of mental clarity and slowed reactions.
Documenting weight and height
SSA usually relies on the judgment of an examining physician who has reported an applicant’s appearance and build, as well as weight and height.
SSA instructs it will consider the individual's weight over time, and will not count minor, short-term weight loss. SSA considers the individual to have obesity as long as the weight or BMI shows a consistent pattern of obesity.
Obesity as a severe impairment
SSA will find that obesity is a “severe” impairment when, alone or in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual's ability to do basic work activities.
SSA opines there is no specific level of weight or BMI that equates with a “severe” or a “not severe” impairment. And that descriptive terms for levels of obesity (e.g., “severe,” “extreme,” or “morbid” obesity) do not establish whether obesity is or is not a “severe” impairment for disability program purposes. Rather, SSA says it will do an individualized assessment of the impact of obesity on an individual's functioning when deciding whether the impairment is severe. These individual assessments require that the applicant's file contains an adequate description of functional limitations in both the medical records and the applicant's activities of daily living (ADL) questionnaire(s).
Obesity and meeting a listing
SSA will find that a listing is met if an impairment in combination with obesity meets the requirements of a listing. For example, obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments.
This may be true for mental disorders. For example, when evaluating impairments under mental disorder listings 12.05C, obesity that is “severe” satisfies the criteria in listing 12.05C for a physical impairment imposing an additional and significant work-related limitation of function.
Obesity and medical equivalence to a listing
SSA may also find that obesity, by itself, is medically equivalent to a listed impairment. For example, if obesity is of such a level that it results in an inability to ambulate effectively (see the “Effective Ambulation and Assistive Devices” section on this web site), it may substitute for the major dysfunction of a joint(s) due to any cause (and its associated criteria), with the involvement of one major peripheral weight-bearing joint in listing 1.02A, and SSA will then make a finding of medical equivalence.
SSA will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment.
For example, obesity affects the cardiovascular and respiratory systems because of the increased workload additional body mass places on these systems. Obesity makes it harder for the chest and lungs to expand, thus making the respiratory system work harder to provide needed oxygen. This in turn makes the heart work harder to pump blood to carry oxygen to the body. Because the body is working harder at rest, its ability to perform additional work is less than would otherwise be expected.
SSA may find that the combination of a pulmonary or cardiovascular impairment and obesity has signs, symptoms, and laboratory findings that are of equal medical significance to one of the respiratory or cardiovascular listings. However, SSA will not make assumptions about the severity or functional effects of obesity combined with other impairments, and the medical records and ADLs must clarify the issue of function.
I often used the factor of obesity to justify a reduction in the RFC for claimants who had underlying congestive heart failure, poorly controlled coronary artery disease, and chronic obstructive lung disease.
Extreme obesity can result in obesity hypoventilation syndrome, a condition in which there is persistent hypoxemia (low oxygenation). Even if this condition does not cause the applicant to need continuous oxygen, the combination of hypoxemia and the deconditioning associated with this level of obesity justifies a favorable decision.
Obesity and residual functional capacity
Obesity may cause exertional, postural, and manipulative limitations depending on the level of obesity and where the weight is carried. The ability to manipulate may be affected by the presence of adipose (fatty) tissue in the hands and fingers. The ability to tolerate extreme heat, humidity, or hazards may also be affected. Obesity may also affect an individual's social functioning due to loss of mental clarity and any underlying mental impairment such as depression.
RFC assessments must consider an individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. In cases involving obesity, fatigue may affect the individual's physical and mental ability to sustain work activity. This may be particularly true in cases involving sleep apnea.
Someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than might be expected from the arthritis alone.
How can SSA consider obesity in the assessment of RFC when SSR 96-8p says, “Age and body habitus are not factors in assessing RFC”?
This SSR distinguishes between individuals who have a medically determinable impairment of obesity and individuals who do not. Thus when obesity is identified as a medically determinable impairment, SSA considers any functional limitations resulting from the obesity in the RFC assessment.
How does the deletion of listing 9.09 affect claims pending on October 25, 1999?
Deletion of listing 9.09 does not affect the entitlement or eligibility of individuals receiving benefits whose impairment(s) met or equaled that listing. SSA will not find that their disabilities have ended just because it deleted listing 9.09. This means when SSA conducts a continuing disability review (CDR), it will not find that an individual's disability has ended based on a change in a listing.
SSA must apply the medical improvement review standard, and decide whether the individual's impairment(s) has medically improved and, if so, whether any medical improvement is related to the ability to work.
Even if the impairment(s) has medically improved, SSA will find that the improvement is not related to the ability to work if the impairment(s) continues to meet or equal the same listing section used to make the most recent favorable decision. This means that if the applicant met an old 9.09 listing, and continues to meet that listing even though it has been deleted, SSA cannot say that medical improvement has occurred.
So for CDR cases, if an applicant met an old 9.09 listing, be sure current medical records cover all requirements related to that old listing. To assist you in representing CDR claims that met 9.09, I've created handy 9.09 weight tables. To enable better documentation, I’ve added corresponding BMIs to the 9.09 weight charts. Because the SSA considers a loss of less than percent of initial body weight too minor to show medical improvement, I’ve also notated 10 percent weight loss numbers and corresponding BMIs for the 9.09 listing weights. You will see from these tables that a 10 percent weight loss of the old 9.09 listing weights still remains in the Level III "extreme" obesity range. To download these tables, click on the following link.
What amount of weight loss would represent “medical improvement”?
It is not appropriate to conclude that an individual with obesity has medically improved because of a minor weight loss. A loss of less than 10 percent of initial body weight is too minor to show medical improvement.
To show medical improvement, an individual must maintain a consistent loss of at least 10 percent of body weight for at least 12 months.
How does SSA evaluate failure to follow prescribed treatment in obesity cases?
20 CFR 404.1530 and 416.930 provide that, in order to get benefits, an individual must follow treatment prescribed by his or her physician if the treatment can restore the ability to work, unless the individual has an acceptable reason for failing to follow the prescribed treatment.
NOTE: SSA will rarely use “failure to follow prescribed treatment” for obesity to deny or cease benefits. If the DDS uses this rationale to deny an obese applicant, this ruling can be used to help refute that rationale on appeal.
If an individual who is disabled because of obesity (alone or in combination with another impairment(s) does not have a treating source who has prescribed treatment for the obesity, there is no issue of failure to follow prescribed treatment.
Treatment must be prescribed by a treating source, as defined in 20 CFR 404.1502 and 416.902, not simply recommended. A treating source's statement that an individual “should” lose weight or has "been advised" to get more exercise is not prescribed treatment. When a treating source has prescribed treatment, the treatment must clearly be expected to improve the impairment to the extent that the person will not be disabled.
This SSR acknowledges that treatment is often ineffective, and therefore, SSA will not find failure to follow prescribed treatment unless there is clear evidence that treatment would be successful. Medical records are very unlikely to show this type of “clear evidence” relating to obesity.
An individual who might benefit from behavioral or drug therapy for obesity might not be able to afford it. Because of the potential for long-term effects of medications used to treat obesity, some people may be reluctant to use them due to the potential risk, and SSA considers this an appropriate reason not to follow prescribed therapy for obesity.
Because of the risks and potential side effects of surgery for obesity, SSA will not find that an individual has failed to follow prescribed treatment for obesity when the prescribed treatment is surgery.
Bottom line: Failure to follow prescribed treatment as a rationale for denying obesity cases is rarely valid; therefore, use this SSR to appeal a decision that makes that rationale.