[Federal Register Volume 67, Number 177 (Thursday, September 12, 2002)]
[Notices]
[Pages 57859-57864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23148]


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SOCIAL SECURITY ADMINISTRATION


Social Security Ruling, SSR 02-1p; Titles II and XVI: Evaluation 
of Obesity

AGENCY: Social Security Administration.

ACTION: Notice of Social Security ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(1), the Commissioner of 
Social Security gives notice of Social Security Ruling, SSR 02-1p. This 
Ruling supersedes SSR 00-3p and provides guidance on the evaluation of 
disability claims involving obesity following our deletion of listing 
9.09, Obesity, from the Listing of Impairments (the listings). The 
final rule deleting listing 9.09 was effective on October 25, 1999 (64 
FR 46122 (1999)).

EFFECTIVE DATE: September 12, 2002.

FOR FURTHER INFORMATION CONTACT: Bonnie Davis, Office of Disability, 
Social Security Administration, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 965-4172 or TTY (410) 966-5609. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet Web site, 
Social Security Online, at http://www.ssa.gov.

SUPPLEMENTARY INFORMATION: Although we are not required to do so 
pursuant

[[Page 57860]]

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    If this Social Security Ruling is later superseded, modified, or 
rescinded, we will publish a notice in the Federal Register to that 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.
    We previously published SSR 00-3p on May 15, 2000 (65 FR 31039 
(2000)), which provided guidance on the evaluation of claims involving 
obesity. However, since the date we published SSR 00-3p we have revised 
several of the rules that we apply under the SSR. The rules that we 
have revised since we published SSR 00-3p include the adult mental 
disorders listings (65 FR 50746 (2000)), the musculoskeletal listings 
for adults and children (66 FR 58010 (2001)), and the regulations that 
we use to evaluate disability in children claiming Supplemental 
Security Income benefits under title XVI of the Social Security Act (65 
FR 54747 (2000)). We are superseding SSR 00-3p with this new ruling to 
reflect the changes to our rules that we have made since we published 
SSR 00-3p. We are not making any other substantive changes to the 
guidance that was contained in SSR 00-3p.

(Catalog of Federal Domestic Assistance, Programs 96.001 Social 
Security--Disability Insurance; 96.006 Supplemental Security Income)

    Dated: September 5, 2002.
Jo Anne B. Barnhart,
Commissioner of Social Security.

Policy Interpretation Ruling

Titles II and XVI: Evaluation of Obesity

    This Ruling supersedes SSR 00-3p, Titles II and XVI: Evaluation of 
Obesity (65 FR 31039, May 15, 2000).
    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).
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    \1\ The 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.
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    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 1.00Q, 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.
    When we published that final rule, in response to public comments, 
we stated that we would provide additional guidance in a Social 
Security Ruling (SSR). (64 FR at 46126) On May 15, 2000, we published 
SSR 00-3p (65 FR 31039) to provide 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. Since then, we have 
published several final rules that revise some of the criteria we use 
to evaluate disability claims under titles II and XVI of the Social 
Security Act. We are issuing this SSR to reflect the changes to the 
rules that we have published since we published SSR 00-3p.

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 obesity-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.

[[Page 57861]]

    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.) BMI-for-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, respiratory, 
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\
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    \2\ For 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.
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    We will consider obesity in determining whether:
    [sbull] The individual has a medically determinable impairment. See 
question 4.
    [sbull] The individual's impairment(s) is severe. See question 6.
    [sbull] 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.)
    [sbull] 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.
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    \3\ As with all impairments, to establish a finding of 
disability based on obesity, in whole or in part, the statutory 
duration requirement must be satisfied. 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).
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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 
the listings.) 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.

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

[[Page 57862]]

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 
minimal functional limitations.) 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 
of function. We will find the requirements of listing 12.05 are met if 
an individual's impairment satisfies the diagnostic description in the 
introductory paragraph of listing 12.05 and any one of the four sets of 
criteria in the listing. In the case of an individual under age 18, we 
will find that the requirements of listing 112.05 are met if the 
child's impairment satisfies the diagnostic description in the 
introductory paragraph of listing 112.05 and any one of the six sets of 
criteria in the listing. (See sections 12.00A and 112.00A of the 
listings.)
    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 the listings). For example, if the 
obesity is of such a level that it results in an inability to ambulate 
effectively, as defined in sections 1.00B2b or 101.00B2b of the 
listings, 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 listings 1.02A or 101.02A, and 
we will then make a finding of medical 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\
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    \4\ For our regulations 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.''
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    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 
consider an individual's maximum remaining ability to do sustained work 
activities in an ordinary work setting on

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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.
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    \5\ However, see footnote 2 of SSR 96-8p. That footnote explains 
that the ability to work 8 hours a day for 5 days a weeks 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.
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    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 may 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 listings. For example, the functional 
limitations imposed by obesity, by itself or in combination with 
another impairment(s), may establish an extreme limitation in one 
domain of functioning (e.g., Moving about and manipulating objects) or 
marked limitations in two domains (e.g., Moving about and manipulating 
objects and Caring for yourself).
    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, short-term 
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 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

[[Page 57864]]

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 follow-up.
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:
    [sbull] The individual has an impairment(s) that meets the 
definition of disability, including the duration requirement, and
    [sbull] A treating source has prescribed treatment that is clearly 
expected to restore the ability to engage in substantial gainful 
activity, and
    [sbull] 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:
    [sbull] The specific medical treatment is contrary to the teaching 
and tenets of the individual's religion.
    [sbull] The individual is unable to afford prescribed treatment 
that he or she is willing to accept, but for which free community 
resources are unavailable.
    [sbull] 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 upon publication in the 
Federal Register.
    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;'' 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. 02-23148 Filed 9-11-02; 8:45 am]
BILLING CODE 4191-02-P