Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Notices 31039

13 17 CFR 200.30–3(a)(12).

1The terms we and us in this Social Security

Ruling have the same meaning as in 20 CFR

404.1502 and 416.902. We or us refers to either the

Social Security Administration or the State agency

making the disability or blindness determination;

i.e., our adjudicators at all levels of the

administrative review process and our quality

reviewers.

For the Commission, by the Division of

Market Regulation, pursuant to delegated

authority.13

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 00–12135 Filed 5–12–00; 8:45 am]

BILLING CODE 8010–01–M

SOCIAL SECURITY ADMINISTRATION

Social Security Ruling, SSR 00–3p.

Titles II and XVI: Evaluation of Obesity

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling.

SUMMARY: In accordance with 20 CFR

402.35(b)(1), the Commissioner of Social

Security gives notice of Social Security

Ruling, SSR 00–3p. This Ruling

provides guidance on the evaluation of

disability claims involving obesity

following our deletion of listing 9.09,

Obesity, from the Listing of

Impairments. The final rule deleting

listing 9.09 was effective on October 25,

1999 (64 FR 46122 (1999)).

EFFECTIVE DATE: May 15, 2000.

FOR FURTHER INFORMATION CONTACT:

Bonnie Davis, Office of Disability,

Social Security Administration, 6401

Security Boulevard, Baltimore, MD

21235–6401, (410) 965–4172.

SUPPLEMENTARY INFORMATION: Although

we are not required to do so pursuant

to 5 U.S.C. 552(a)(1) and (a)(2), we are

publishing this Social Security Ruling

in accordance with 20 CFR 402.35(b)(1).

Social Security Rulings make

available to the public precedential

decisions relating to the Federal old-age,

survivors, disability, supplemental

security income, and black lung benefits

programs. Social Security Rulings may

be based on case decisions made at all

administrative levels of adjudication,

Federal court decisions, Commissioner’s

decisions, opinions of the Office of the

General Counsel, and policy

interpretations of the law and

regulations.

Although Social Security Rulings do

not have the same force and effect as the

statute or regulations, they are binding

on all components of the Social Security

Administration, in accordance with 20

CFR 402.35(b)(1), and are to be relied

upon as precedents in adjudicating

cases.

If this Social Security Ruling is later

superseded, modified, or rescinded, we

will publish a notice in the Federal

Register to that effect.

(Catalog of Federal Domestic Assistance,

Programs 96.001 Social Security—

Disability Insurance; 96.006

Supplemental Security Income)

Dated: May 3, 2000.

Kenneth S. Apfel,

Commissioner of Social Security.

Policy Interpretation Ruling Titles II

and XVI: Evaluation of Obesity

Purpose

To provide guidance on SSA policy

concerning the evaluation of obesity in

disability claims filed under titles II and

XVI of the Social Security Act (the Act).

Citations

Sections 216(i), 223(d), 223(f),

1614(a), and 1614(c) of the Act, as

amended; Regulations No. 4, subpart P,

sections 404.1502, 404.1508, 404.1509,

404.1512, 404.1520, 404.1521, 404.1523,

404.1525, 404.1526, 404.1528, 404.1529,

404.1530, 404.1545, 404.1546, 404.1561,

404.1594, and appendix 1; and

Regulations No. 16, subpart I, sections

416.902, 416.908, 416.909, 416.912,

416.920, 416.921, 416.923, 416.924,

416.925, 416.926, 416.926a, 416.928,

416.929, 416.930, 416.933, 416.945,

416.946, 416.961, 416.994, and

416.994a.

Introduction

On August 24, 1999, we 1 published a

final rule in the Federal Register

deleting listing 9.09, Obesity, from the

Listing of Impairments in 20 CFR,

subpart P, appendix 1 (the listings). The

final rule was effective on October 25,

1999. 64 FR 46122 (1999).

We stated in the preamble to the final

rule that we deleted listing 9.09 because

our experience adjudicating cases under

this listing indicated that the criteria in

the listing were not appropriate

indicators of listing-level severity. In

our experience, the criteria in listing

9.09 did not represent a degree of

functional limitation that would prevent

an individual from engaging in any

gainful activity.

However, even though we deleted

listing 9.09, we made some changes to

the listings to ensure that obesity is still

addressed in our listings. 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 1.00F, 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.

In response to public comments, we

stated that we would provide additional

guidance in a Social Security Ruling

(SSR). (64 FR at 46126) This SSR

provides that additional guidance by

discussing how we evaluate obesity in

disability claims filed by adults and

children under titles II and XVI of the

Act.

Policy Interpretation

General

1. What Is Obesity?

Obesity is a complex, chronic disease

characterized by excessive

accumulation of body fat. Obesity is

generally the result of a combination of

factors (e.g., genetic, environmental, and

behavioral).

In one sense, the cause of obesity is

simply that the energy (food) taken in

exceeds the energy expended by the

individual’s body. However, the

influences on intake, the influences on

expenditure, the metabolic processes in

between, and the overall genetic

controls are complex and not well

understood.

The National Institutes of Health

(NIH) established medical criteria for

the diagnosis of obesity in its Clinical

Guidelines on the Identification,

Evaluation, and Treatment of

Overweight and Obesity in Adults (NIH

Publication No. 98–4083, September

1998). These 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 of

25–29.9 as ‘‘overweight’’ and a BMI of

30.0 or above as ‘‘obesity.’’

The 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 obesityVerDate 11<MAY>2000 20:48 May 12, 2000 Jkt 190000 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\15MYN1.SGM pfrm08 PsN: 15MYN1
31040 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Notices

2For ease of reading, we refer in this Ruling only

to the steps of the sequential evaluation processes

for initial adult and childhood claims. 20 CFR

404.1520, 416.920, and 416.924. We use separate

sequential evaluation processes when we do

continuing disability reviews; i.e. reviews to

determine whether individuals who are receiving

disability benefits are still disabled or when we

determine whether an individual has a ‘‘closed

period of disability.’’ These rules are set out in 20

CFR 404.1594, 416.994, and 416.994a, and the

guidance in this Ruling applies to all of the

appropriate steps in those regulations as well.

However, in some continuing disability review

cases, we will still consider the provisions of former

listings 9.09 and 10.10. See question 11.

3As with all impairments, to establish a finding

of disability based on obsesity, in whole or in part,

the statutory duration requirement must be satified.

See 20 CFR 404.1509 or 416.909, and SSR 82–52,

‘‘Titles II and XVI: Duration of the Impairment’’

(superseded in part by SSR 91–7c).

related impairments, includes BMIs

greater than or equal to 40. These levels

describe the extent of obesity, but they

do not correlate with any specific degree

of functional loss.

In addition, although there is often a

significant correlation between BMI and

excess body fat, this is not always the

case. The Clinical Guidelines also

provide for considering whether an

individual of a given height and weight

has excess body fat when determining

whether he or she has obesity. Thus, it

is possible for someone whose BMI is

below 30 to have obesity if too large a

percentage of the weight is from fat.

Likewise, someone with a BMI above 30

may not have obesity if a large

percentage of the weight is from muscle.

However, in most cases, the BMI will

show whether the individual has

obesity. It also will usually be evident

from the information in the case record

whether the individual should not be

found to have obesity, despite a BMI of

30.0 or above. See question 4, below.

The Clinical Guidelines do not

provide criteria for diagnosing obesity

in children. However, a BMI greater

than or equal to the 95th percentile for

a child’s age is generally considered

sufficient to establish the diagnosis of

obesity. (BMIs in the 95th percentile

vary by age and sex of the child.) BMIfor-age-and-gender charts are published

in medical textbooks or professional

journals and by the National Center for

Health Statistics. As with adults, the

amount of body fat is considered in

making the diagnosis of obesity in

children.

Treatment for obesity is often

unsuccessful. Even if treatment results

in weight loss at first, weight lost is

often regained, despite the efforts of the

individual to maintain the loss. See

question 13, below, for additional

discussion of obesity treatment.

2. How Does Obesity Affect Physical

and Mental Health?

Obesity is a risk factor that increases

an individual’s chances of developing

impairments in most body systems. It

commonly leads to, and often

complicates, chronic diseases of the

cardiovascular, pulmonary, and

musculoskeletal body systems. Obesity

increases the risk of developing

impairments such as type II (so-called

adult onset) diabetes mellitus-even in

children; gall bladder disease;

hypertension; heart disease; peripheral

vascular disease; dyslipidemia

(abnormal levels of fatty substances in

the blood); stroke; osteoarthritis; and

sleep apnea. It is associated with

endometrial, breast, prostate, and colon

cancers, and other physical

impairments. Obesity may also cause or

contribute to mental impairments such

as depression. The effects of obesity

may be subtle, such as the loss of mental

clarity and slowed reactions that may

result from obesity-related sleep apnea.

The fact that obesity is a risk factor for

other impairments does not mean that

individuals with obesity necessarily

have any of these impairments. It means

that they are at greater than average risk

for developing the other impairments.

3. How Do We Consider Obesity in the

Sequential Evaluation Process 2

We will consider obesity in

determining whether:

• The individual has a medically

determinable impairment. See question

4.

• The individual’s impairment(s) is

severe. See question 6.

• The individual’s impairment(s)

meets or equals the requirements of a

listed impairment in the listings. See

question 7. (We use special rules for

some continuing disability reviews. See

question 11.)

• The individual’s impairment(s)

prevents him or her from doing past

relevant work and other work that exists

in significant numbers in the national

economy. However, these steps apply

only in title II and adult title XVI cases.

See questions 8 and 9.

4. How Is Obesity Identified as a

Medically Determinable Impairment?

When establishing the existence of

obesity, we will generally rely on the

judgment of a physician who has

examined the claimant and reported his

or her appearance and build, as well as

weight and height. Thus, in the absence

of evidence to the contrary in the case

record, we will accept a diagnosis of

obesity given by a treating source or by

a consultative examiner. However, if

there is evidence that indicates that the

diagnosis is questionable and the

evidence is inadequate to determine

whether or not the individual is

disabled, we will contact the source for

clarification, using the guidelines in 20

CFR 404.1512(e) and 416.912(e).

When the evidence in a case does not

include a diagnosis of obesity, but does

include clinical notes or other medical

records showing consistently high body

weight or BMI, we may ask a medical

source to clarify whether the individual

has obesity. However, in most such

cases we will use our judgment to

establish the presence of obesity based

on the medical findings and other

evidence in the case record, even if a

treating or examining source has not

indicated a diagnosis of obesity.

Generally, we will not purchase a

consultative examination just to

establish the diagnosis of obesity.

When deciding whether an individual

has obesity, we will also consider the

individual’s weight over time. 3 We will

not count minor, short-term weight loss.

We will consider the individual to have

obesity as long as his or her weight or

BMI shows essentially a consistent

pattern of obesity. (See question 13 for

a discussion of weight loss and medical

improvement.)

Finally, there are a number of

methods for measuring body fat and, if

such information is in a case record, we

will consider it. However, we will not

purchase such testing. In most cases, the

medical and other evidence in the case

record will establish whether the

individual has obesity.

5. Can We Find an Individual Disabled

Based on Obesity Alone?

If an individual has the medically

determinable impairment obesity that is

‘‘severe’’ as described in question 6, we

may find that the obesity medically

equals a listing. (In the case of a child

seeking benefits under title XVI, we may

also find that it functionally equals a

listing.) We may also find in a title II

claim, or an adult claim under title XVI,

that the obesity results in a finding that

the individual is disabled based on his

or her residual functional capacity

(RFC), age, education, and past work

experience. However, we will also

consider the possibility of coexisting or

related conditions, especially as the

level of obesity increases. We provide

an example of when we may find

obesity to medically equal a listing in

question 7.

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Notices 31041

4For our regualtions and rulings on the

consideration of medical or psychological

consultant opinions in determining medical

equivalence, see 20 CFR 404.1526(c) and

416.926(c), and SSR 96–6p, ‘‘Titles II and XVI:

Consideration of Administrative Findings of Fact by

State Agency Medical and Psychological

Consultants and Other Program Physicians and

Psychologists at the Administrative Law Judge and

Appeals Council Levels of Administrative Review;

Medical Equivalence.’’

Sequential Evaluation: Step 2, Severe

Impairment

6. When Is Obesity a ‘‘Severe’’

Impairment?

As with any other medical condition,

we 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 physical or mental ability

to do basic work activities. (For children

applying for disability under title XVI,

we will find that obesity is a ‘‘severe’’

impairment when it causes more than a

minimal functional limitation.) We will

also consider the effects of any

symptoms (such as pain or fatigue) that

could limit functioning. (See SSR 85–

28, ‘‘Titles II and XVI: Medical

Impairments That Are Not Severe’’ and

SSR 96–3p, ‘‘Titles II and XVI:

Considering Allegations of Pain and

Other Symptoms In Determining

Whether a Medically Determinable

Impairment Is Severe.’’) Therefore, we

will find that an impairment(s) is ‘‘not

severe’’ only if it is a slight abnormality

(or a combination of slight

abnormalities) that has no more than a

minimal effect on the individual’s

ability to do basic work activities (or, for

a child applying under title XVI, if it

causes no more than minimal functional

limitations).

There is no specific level of weight or

BMI that equates with a ‘‘severe’’ or a

‘‘not severe’’ impairment. Neither do

descriptive terms for levels of obesity

(e.g., ‘‘severe,’’ ‘‘extreme,’’ or ‘‘morbid’’

obesity) establish whether obesity is or

is not a ‘‘severe’’ impairment for

disability program purposes. Rather, we

will do an individualized assessment of

the impact of obesity on an individual’s

functioning when deciding whether the

impairment is severe.

Sequential Evaluation Step 3, The

Listings

7. How Do We Evaluate Obesity at Step

3 of Sequential Evaluation, The

Listings?

Obesity may be a factor in both

‘‘meets’’ and ‘‘equals’’ determinations.

Because there is no listing for obesity,

we will find that an individual with

obesity ‘‘meets’’ the requirements of a

listing if he or she has another

impairment that, by itself, meets the

requirements of a listing. We will also

find that a listing is met if there is an

impairment that, 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. It may also be true for

other coexisting or related impairments,

including mental disorders.

For example, when evaluating

impairments under mental disorder

listings 12.05C, 112.05D, or 112.05F,

obesity that is ‘‘severe,’’ as explained in

question 6, satisfies the criteria in listing

12.05C for a physical impairment

imposing an additional and significant

work-related limitation of function and

in listings 112.05D and 112.05F for a

physical impairment imposing an

additional and significant limitation[s]

of function. We will find the

requirements of those listings are met if

an individual meets all of the other

requirements of the listings, including

the capsule definition of mental

retardation contained in the listings.

(See SSR 98–1p, ‘‘Title XVI:

Determining Medical Equivalency in

Childhood Disability Claims When a

Child Has Marked Limitations in

Cognition and Speech.’’)

We may also find that obesity, by

itself, is medically equivalent to a listed

impairment (or, in the case of a child

applying under title XVI, also

functionally equivalent to a listed

impairment). For example, if the obesity

is of such a level that it markedly limits

the individual’s ability to walk and

stand, it may substitute for arthritis (and

its associated criteria) of a weightbearing joint with ‘‘gross anatomical

deformity of a hip or knee’’ in listing

1.03A, and we will then make a finding

of equivalence. (See question 8 for

further discussion of evaluating the

functional effects of obesity, including

functional equivalence determinations

for children applying for benefits under

title XVI.)

We 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 the additional body

mass places on these systems. Obesity

makes it harder for the chest and lungs

to expand. This means that the

respiratory system must 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. Thus, we 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.4

However, we will not make

assumptions about the severity or

functional effects of obesity combined

with other impairments. Obesity in

combination with another impairment

may or may not increase the severity or

functional limitations of the other

impairment. We will evaluate each case

based on the information in the case

record.

Sequential Evaluation: Steps 4 and 5,

Assessing Functioning in Adults Step 3,

Assessing Functional Equivalence in

Children

8. How Do We Evaluate Obesity in

Assessing Residual Functional Capacity

in Adults and Functional Equivalence

in Children?

Obesity can cause limitation of

function. The functions likely to be

limited depend on many factors,

including where the excess weight is

carried. An individual may have

limitations in any of the exertional

functions such as sitting, standing,

walking, lifting, carrying, pushing, and

pulling. It may also affect ability to do

postural functions, such as climbing,

balance, stooping, and crouching. 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.

The effects of obesity may not be

obvious. For example, some people with

obesity also have sleep apnea. This can

lead to drowsiness and lack of mental

clarity during the day. Obesity may also

affect an individual’s social functioning.

An assessment should also be made of

the effect obesity has upon the

individual’s ability to perform routine

movement and necessary physical

activity within the work environment.

Individuals with obesity may have

problems with the ability to sustain a

function over time. As explained in SSR

96–8p (‘‘Titles II and XVI: Assessing

Residual Functional Capacity in Initial

Claims’’), our RFC assessments must

31042 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Notices

5However, see footnote 2 of SSR 96–8p. That

footnote explains that the ability to work 8 hours

a day for 5 days a week is not always required for

a finding at step 4 of the sequential evaluation

process for adults when an individual can do past

relevant work that was part-time work, if that work

was substantial gainful activity, performed within

the applicable period, and lasted long enough for

the person to learn to do it.

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.5 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.

The combined effects of obesity with

other impairments may be greater than

might be expected without obesity. For

example, someone with obesity and

arthritis affecting a weight-bearing joint

may have more pain and limitation than

might be expected from the arthritis

alone.

For a child applying for benefits

under title XVI, we will evaluate the

functional consequences of obesity

(either alone or in combination with

other impairments) to decide if the

child’s impairment(s) functionally

equals the severity of a listed

impairment that includes disabling

functional limitations among its criteria.

For example, the functional limitations

imposed by obesity, by itself or in

combination with another

impairment(s), may establish an extreme

limitation in one broad area of

functioning (e.g., motor) or marked

limitations in two broad areas of

functioning (e.g., motor and social). We

may also find that the functional

limitations imposed by obesity establish

functional equivalence based on one of

the other methods set out in 20 CFR

416.926a.

As with any other impairment, we

will explain how we reached our

conclusions on whether obesity caused

any physical or mental limitations.

9. How Can We Consider Obesity in the

Assessment of RFC When SSR 96–8p

Says, ‘‘Age and Body Habitus Are Not

Factors in Assessing RFC’’?

The SSR goes on to say that ‘‘[i]t is

incorrect to find that an individual has

limitations beyond those caused by his

or her medically determinable

impairment(s) and any related

symptoms, due to such factors as age

and natural body build, and the

activities the individual was

accustomed to doing in his or her

previous work.’’ (Emphasis added.) We

included the italicized statement in the

SSR to distinguish between individuals

who have a medically determinable

impairment of obesity and individuals

who do not. When we identify obesity

as a medically determinable impairment

(see question 4, above), we will consider

any functional limitations resulting

from the obesity in the RFC assessment,

in addition to any limitations resulting

from any other physical or mental

impairments that we identify.

Effect of the Rules Change: Claims in

Which Prior Listings Apply and Do Not

Apply

10. How Does the Deletion of Listing

9.09 Affect Claims Pending on October

25, 1999?

The final rules that deleted the listing

became effective on October 25, 1999.

The final rules deleting listing 9.09

apply to claims that were filed before

October 25, 1999, and that were

awaiting an initial determination or that

were pending appeal at any level of the

administrative review process or that

had been appealed to court. The change

affected the entire claim, including the

period before October 25, 1999. This is

our usual policy with respect to any

change in our listings.

However, different rules apply to

individuals who were already found

eligible to receive benefits prior to

October 25, 1999. For an explanation of

how we apply listing 9.09 in continuing

disability reviews, see question 11.

11. How Does Deletion of Listing 9.09

Affect Claims Already Allowed?

Deletion of listing 9.09 does not affect

the entitlement or eligibility of

individuals receiving benefits because

their impairment(s) met or equaled that

listing. We will not find that their

disabilities have ended just because we

deleted listing 9.09.

We must periodically review all

claims to determine whether the

individual’s disability continues. When

we conduct a periodic continuing

disability review (CDR), we will not find

that an individual’s disability has ended

based on a change in a listing. For

individuals receiving disability benefits

under title II and adults receiving

payments under title XVI, we apply the

medical improvement review standard

described in 20 CFR 404.1594 and

416.994.

We will first evaluate whether the

individual’s impairment(s) has

medically improved and, if so, whether

any medical improvement is related to

the ability to work. If the individual’s

impairment(s) has not medically

improved, we will find that he or she is

still disabled, unless we find that an

exception to the medical improvement

standard applies. Even if the

impairment(s) has medically improved,

we 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 our most recent favorable

decision. This is true even if we have

since deleted the listing section that we

used to make the most recent favorable

decision. See 20 CFR 404.1594(c)(3)(i)

and 416.994(b)(2)(iv)(A). We apply a

similar provision when we do CDRs for

individuals who have not attained age

18 and who are eligible for title XVI

benefits based on disability (20 CFR

416.994a(b)(2)).

Even if the individual’s impairment(s)

has medically improved and no longer

meets or equals prior listing 9.09, we

must still determine whether he or she

is currently disabled, considering all of

the impairments.

12. What Amount of Weight Loss Would

Represent ‘‘Medical Improvement’’?

Because an individual’s weight may

fluctuate over time and minor weight

changes are of little significance to an

individual’s ability to function, 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 result

in a finding that there has been medical

improvement in the obesity. However,

we will consider that obesity has

medically improved if an individual

maintains a consistent loss of at least 10

percent of body weight for at least 12

months. We will not count minor, shortterm changes in weight when we decide

whether an individual has maintained

the loss consistently.

If there is a coexisting or related

condition(s) and the obesity has not

improved, we will still consider

whether the coexisting or related

condition(s) has medically improved.

If we find that there has been medical

improvement in obesity or in any

coexisting or related condition(s), we

must also decide whether the medical

improvement is related to the ability to

work. If necessary, we will also decide

whether any exceptions to the medical

improvement review standard apply

and, if appropriate, whether the

individual is currently disabled.

13. What Are the Goals and Methods of

Treatment for Obesity?

Obesity is a disease that requires

treatment, although in most people the

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Notices 31043

effect of treatment is limited. However,

if untreated, it tends to progress.

A common misconception is that the

goal of treatment is to reduce weight to

a ‘‘normal’’ level. Actually, the goal of

realistic medical treatment for obesity is

only to reduce weight by a reasonable

amount that will improve health and

quality of life. People with extreme

obesity, even with treatment, will

generally continue to have obesity.

Despite short-term progress, most

treatments for obesity do not have a

high success rate.

Recommended treatment for obesity

depends upon the level of obesity. At

levels I and II (BMI 30.0–39.9),

treatment usually consists of behavior

modification (diet and exercise) with

the option of medication, usually either

in the form of a fat-blocking drug or an

appetite suppressant. Some people do

not respond to medication, while others

experience negative side effects. (In

making our decision, we will also

consider any side effects of medication

the individual experiences.) Individuals

with coexisting or related conditions

may not be able to take medication

because of its effects on their other

conditions.

Generally, physicians recommend

surgery when obesity has reached level

III (BMI 40 or greater). However, surgery

may also be an option at level II (BMI

35–39.9) if there is a serious coexisting

or related condition. Obesity surgery

modifies the stomach, the intestines, or

both in order to reduce the amount of

food that the individual can eat at one

meal or the time food is available for

digestion and absorption. Surgery is

generally a last resort with individuals

for whom other forms of treatment have

failed. Some individuals also experience

significant negative side effects from

surgery (e.g., ‘‘dumping syndrome’’—

that is, rapid emptying of the stomach’s

contents marked by various signs and

symptoms).

Obesity is a life-long disease. Even

when treatment has been successful,

individuals with obesity generally need

to stay in treatment or they will gain

weight again, just as individuals with

other impairments may need to stay in

treatment. Individuals who have had

surgery should receive continuing

follow-up care because of health risks

related to the surgery. As with other

chronic disorders, effective treatment of

obesity requires regular medical followup.

14. How Do We Evaluate Failure To

Follow Prescribed Treatment in Obesity

Cases?

Before failure to follow prescribed

treatment for obesity can become an

issue in a case, we must first find that

the individual is disabled because of

obesity or a combination of obesity and

another impairment(s). Our regulations

at 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. We will rarely use

‘‘failure to follow prescribed treatment’’

for obesity to deny or cease benefits.

SSR 82–59, ‘‘Titles II and XVI: Failure

To Follow Prescribed Treatment,’’

explains that we will find failure to

follow prescribed treatment only when

all of the following conditions exist:

• The individual has an

impairment(s) that meets the definition

of disability, including the duration

requirement, and

• A treating source has prescribed

treatment that is clearly expected to

restore the ability to engage in

substantial gainful activity, and

• The evidence shows that the

individual has failed to follow

prescribed treatment without a good

reason.

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.

The treatment must be prescribed by

a treating source, as defined in our

regulations at 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 for obesity, the treatment

must clearly be expected to improve the

impairment to the extent that the person

will not be disabled. As noted in

question 13, the goals of treatment for

obesity are generally modest, and

treatment is often ineffective. Therefore,

we will not find failure to follow

prescribed treatment unless there is

clear evidence that treatment would be

successful. The obesity must be

expected to improve to the point at

which the individual would not meet

our definition of disability, considering

not only the obesity, but any other

impairment(s).

Finally, even if we find that a treating

source has prescribed treatment for

obesity, that the treatment is clearly

expected to restore the ability to engage

in SGA, and that the individual is not

following the prescribed treatment, we

must still consider whether the

individual has a good reason for doing

so. In making this finding, we will

follow the guidance in our regulations

and SSR 82–59, which provide that

acceptable justifications for failing to

follow prescribed treatment include, but

are not limited to, the following:

• The specific medical treatment is

contrary to the teaching and tenets of

the individual’s religion.

• The individual is unable to afford

prescribed treatment that he or she is

willing to accept, but for which free

community resources are unavailable.

• The treatment carries a high degree

of risk because of the enormity or

unusual nature of the procedure.

In this regard, most health insurance

plans and Medicare do not defray the

expense of treatment for obesity. Thus,

an individual who might benefit from

behavioral or drug therapy might not be

able to afford it. Also, because not

enough is known about the long-term

effects of medications used to treat

obesity, some people may be reluctant

to use them due to the potential risk.

Because of the risks and potential side

effects of surgery for obesity, we will not

find that an individual has failed to

follow prescribed treatment for obesity

when the prescribed treatment is

surgery.

Effective Date: This Ruling is effective

May 15, 2000.

Cross-References: SSR 82–52, ‘‘Titles

II and XVI: Duration of the

Impairment;’’ SSR 82–59, ‘‘Titles II and

XVI: Failure To Follow Prescribed

Treatment;’’ SSR 85–28, ‘‘Titles II and

XVI: Medical Impairments That Are Not

Severe;’’ SSR 96–3p, ‘‘Titles II and XVI:

Considering Allegations of Pain and

Other Symptoms In Determining

Whether a Medically Determinable

Impairment Is Severe;’’ SSR 96–6p,

‘‘Titles II and XVI: Consideration of

Administrative Findings of Fact by State

Agency Medical and Psychological

Consultants and Other Program

Physicians and Psychologists at the

Administrative Law Judge and Appeals

Council Levels of Administrative

Review; Medical Equivalence;’’ SSR 96–

8p, ‘‘Titles II and XVI: Assessing

Residual Functional Capacity in Initial

Claims;’’ SSR 98–1p, ‘‘Title XVI:

Determining Medical Equivalency in

Childhood Disability Claims When a

Child Has Marked Limitations in

Cognition and Speech;’’ and Program

Operations Manual System sections DI

23010.005 ff., DI 24510.006, DI

24570.001, DI 34001.010, DI 34001.014,

and DI 34001.016.

[FR Doc. 00–12053 Filed 5–12–00; 8:45 am]

BILLING CODE 4191–02–U