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).
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( 3 / 467 )Within the last ten years the condition of fibromyalgia has been an accepted disease within the medical community. According to the Arthritis Foundation fibromyalgia is a form of soft tissue or muscular rheumatism with muscular pain and fatigue that affects over 5 million people in the United States. See, Arthritis Foundation, What is Fibromyalgia, www.arthritis.org Unfortunately, the legal community is lacking in their awareness of the impairment. The few Social Security decisions that address fibromyalgia often reveal an Administrative Law Judge's (hereinafter "ALJ") unfamiliarity with the disease. This leads the ALJ to evaluate the claimant's credibility rather than the disease. Of course, the ALJ's unfamiliarity is also a direct reflection upon the advocate who's duty is to inform the Court.
In 1996, the Seventh Circuit held that, the ALJ misunderstood the disease of fibromyalgia and improperly found the claimant's credibility to be undermined. Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The Court observed that the principal symptoms of fibromyalgia are "pain all over," fatigue, disturbed sleep, stiffness, and the only symptom that discriminates between it and other diseases of a rheumatic character multiple aching spots. Id. at 307.
The Tenth Circuit stated that, "the mysterious nature of this disease and the ALJ's lack of familiarity with it....impacted his decisions concerning the assessment of [the claimant's] credibility." Stephens v. Chater, No. 954110RDR, 1996 WL 304527 (D. Kan. June 4, 1996). The Stephens case epitomizes the difficulty in the evaluation of the disability claim where fibromyaglia is at issue. Often, because of the "mystery" of the disease the claimant's credibility may wrongfully come into question.
As a result of ALJ decisions evaluating claimants' credibility rather than fibromyalgia, recent rulings are now requiring a comprehensive assessment of medically documented fibromyalgia symptomology. Owen v. Chater, 913 F. Supp. 1413, 1419 (D. Kan. 1995); Social Security Ruling 967p. To dispel the "mystery" of the disease two circuits have aligned fibromyalgia with the well recognized disease of chronic fatigue syndrome (hereinafter "CFS"). The Eleventh Circuit held that, fibromyalgia is "not inconsistent with a diagnosis of [CFS]." Sabo v. Chater, 955 F. Supp. 1456, 1462 (M.D. Fla. 1996), quoting Fragale v. Chater, 916 F. Supp. 249, 254 (W.D.N.Y. 1996). The Ninth Circuit held that, a diagnosis of CFS and fibromyalgia may exist simultaneously, especially since they both share a number of common features. Powell v. Chater, 959 F. Supp. 1238 (C.D. Cal. 1997).
The advocate should keep in mind that physical examinations will usually yield normal results a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. There are no objective tests which can conclusively confirm the disease. The medical literature indicates that fibromyaglia patient's may have psychological disorders, the disease commonly strikes between the ages of 35 and 60 and it affects women nine times more than men. See, Preston v. Secretary of Health and Human Services, 854 F.2d 815, 818 (6th Cir. 1988).
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( 3 / 504 )In the past, most of the articles written about the Social Security Administration (SSA) have been about what is wrong with the agency and its programs. In the spirit of positive thinking the following are important programs and tools that the practitioner should be aware of and utilize when tackling a Social Security dilemma.
The SSA has a well planned out and user friendly website in English and Spanish at www.SSA.gov . The website is packed full of important information and answers to the most frequently asked questions. This site contains a multitude of pamphlets and publications on every aspect of Social Security benefits which are easily searchable by keywords and subject matter. A great benefit to the practitioner is the online library of Social Security Rulings and most recent updates. Also a downloadable PIA calculator is available for the estimated benefit calculations. Most recently, the SSA allows an online request for an individual's earnings report and benefit estimate statement.
In SSA's push to be more user friendly the agency has launched the largest customized mailing by a Federal agency. The SSA is currently sending an annual Social Security Statement to125 million workers. The 4-page statement is designed to make workers aware of their retirement, disability and survivors' benefits. The statement will also provide workers an easy way to determine whether their earnings are accurately posted on their Social Security records.
A recent Gallup poll showed that individuals who have received a Social Security Statement from the SSA have a greater understanding of their benefits than those who did not receive a statement. Those who have received a statement are more likely to know that (1) the amount of benefits depends on how much they earned; (2) Social Security pays benefits to workers who become disabled; (3) Social Security provides benefits to dependents of workers who die; and (4) Social Security was designed only to provide part of total retirement income. This increased awareness and documentation will also help the Social Security practitioner more accurately assess the client's potential benefit recovery.
The need for more accurate and timely information is being addressed via SSA Commissioner Apfel's Short-Term Initiative Program to improve the 800 number telephone service. This initiative, which is dependent upon enactment of the President's budget, will improve customer service by increasing the SSA national 800 number call answering capacity. The program will also provide employees in the Program Service Centers (PSC) more time to spend on pending workloads which include requests for recomputations of benefits and activities related to the distribution and collection of benefits that have been paid incorrectly. Currently, these areas have delays in excess of 90 to 180 days.
In the spirit of positive thinking and an eye towards user friendly programs the SSA has made a step in the right direction. Just think what could be done if we could get the Social Security Administration to---------leap?
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