Social Security Disability and Obesity

SSR 02-1p, effective September 12, 2002, provides guidance on SSA policy concerning the evaluation of obesity in Social Security disability claims. This ruling came about as a response to the deletion of listing 9.09 for Obesity, which had once been a part of the Listing of Impairments in 20 CFR, subpart P, appendix 1.

Listing 9.09 first required that a claimant filing a Social Security disability claim exceed a certain weight based on his or her height. Once this requirement was met, the claimant would have had to exhibit one of the five following impairments:

• History of pain and limitation of motion in any weight-bearing joint or spine…
• Hypertension with diastolic blood pressure persistently in excess of 100 mm
• History of congestive heart failure manifested by past evidence of vascular congestion…
• Chronic venous insufficiency with superficial varicosities in a lower extremity with pain on weight-bearing and persistent edema
• Respiratory disease with total forced vital capacity equal to or less than the value specified…

As of October 25, 1999 when the deletion became effective, a person filing for disability benefits could no longer claim obesity as stated above. However, pursuant to SSR 02-1p, obesity must still be considered in the evaluation process. Listing 9.09 was deleted because Social Security felt the listing’s criteria “were not appropriate indicators of listing-level severity.” In other words, the criteria set forth in listing 9.09 “did not represent a degree of functional limitation that would prevent an individual [applying for disability benefits] from engaging in any gainful activity.”

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The New "Federal Reviewing Official"

A new position at the federal level called the “Federal Reviewing Official," will be created. This Official will review initial DDS determinations upon the request of the claimant. For a long time, there have been complaints that initial determinations were being made inconsistently, unfairly and inaccurately. The new Federal Review Official will seek to ensure that determinations are made correctly at the beginning stages of the Social Security Disability process. This Official will have the authority to make a decision as to whether an individual is disabled. The Federal Review Officials will be attorneys, centrally managed, and better suited to perform the function of documenting evidence and writing legally sound decisions as to benefits. An individual may submit evidence at any time while the Official is reviewing their case, even up until the decision is issued. An individual may request review by a Federal Reviewing Official within 60 days after receiving notice of their initial denial. Further, under this new rule, if a claimant does not make a request for review within these 60 days, they can still request an extension of time to do so even after the 60 day period has lapsed.

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What Can I Do to Win My Social Security Disability Case?

There are several things claimants can do to improve their chances of winning their Social Security Disability or Supplemental Security Income case. The key is in the presentation of the evidence that comes to comprise your file - the documents upon which the decision will be based.

Your file contains several types of documents, pertaining to everything from timeliness of filing, to jurisdiction, to vocational assessments, to earnings records, to medical records. Many of these you have no control over. But there are many that you do. So it is vital that you exercise some level of control over those documents that you can. This is where the advice of your attorney can be critical.

One aspect of the case over which you have a good deal of control is your medical treatment. It is crucial to maintain consistent medical treatment. Remember that the standard of disability that SSA uses as a bar is very high. It means not only that you are no longer able to do the work you've done in the past, but that you can't do any other work that exists in throughout the national economy.

It is up to the claimant to prove the fact of disability, and this can only be accomplished through clinical medical evidence. Your subjective complaints are considered, but are not given very much weight. The opinion of your doctor is given some little weight as well, but it will not make the difference. What is vital is clinical medical evidence - fact as opposed to opinion.
Be aware that your doctors make notes in your records of their observations, as well as your complaints. This is not the time or place to be brave. Many an unfavorable decision makes note of the fact that the claimant said he was "feeling better," whatever that means.

But from the SSA point of view, a person who cannot do any work at all is, for whatever reason, in pretty bad shape, and should be seeking consistent treatment and relief. It is logical, for example, for a claimant who alleges significant levels of pain to seek relief by whatever means is available, including pain-killers, therapy, injections, or even surgery.

It is also important that you comply with the instructions and recommendations of your doctors. If an adjudicator or judge wants a reason to deny your claim, they will glom onto whatever they can. So if your doctor prescribes you medicine and you don't take it, it can be held against you.
Cooperate with your attorney in making sure all relevant records are known about and submitted to SSA. Keep in mind that a disabling impairment for SSA purposes is one expected to last at least twelve months or result in death. Not every condition for which you've sought treatment is relevant. The time you cut your finger or had the flu five years ago will not have much bearing on your case, but it is best to let your attorney review your records and present your case in the most favorable light possible.

It is also important to avoid alcohol, illicit drug use, and in some cases, even tobacco. If it is determined that something you are doing is contributing to your disability, and if you stopped doing it your condition would improve, this will be held against you. So if you can't walk a block without shortness of breath, but continue to smoke two packs a day, or are depressed but continue drinking alcohol, or are bipolar but on cocaine, it may be determined that if you stopped doing these things you would get better, and your claim denied.

There are other documents in your file over which you can exercise control. SSA will have you complete adult function reports, stating how you spend your day, and your activities of daily living. Once you have completed these forms and submitted them, they become a permanent part of your record. Any contradiction of them later will have to be explained, and may go to credibility. If a judge doesn't believe that your impairments are as limiting as you say they are, your case is sunk.

Your earnings record is a vital piece of evidence in your file. Be aware that if you have worked for an employer or filed taxes, SSA will have a record of it. If you have earned income after the date you alleged you became disabled, it will have to be explained to the adjudicator's satisfaction. If you have engaged in substantial gainful activity ($940 per month in 2008), your case may not progress beyond the first step of the process. This is also vital for SSI cases, because if you have too much income or too many resources, you will not qualify for benefits.

One other thing you can do to win your case: do not give up! SSA has become notoriously slow. Cases can sometimes linger for three years or more. In the meantime, claimants have not been able to work, have long ago exhausted their savings, have sold their belongings, lost their homes, etc. It is frustrating. But do what you can. Write your congressman. Believe it or not, they do respond, and SSA has a special process they follow when they receive congressional inquiries. Just don't give up.

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