Joined: 07 Nov 2007 Posts: 40 Location: Lancaster, PA
Posted: Wed Dec 30, 2009 04:14 pm Post subject: obesity
I have a 44-year-old cl who is approx. 6 feet tall and weighs 500 +/- pounds. Past work is as a prep cook. His severe impairments include obesity, lymphedema in his left leg, ventral hernia and hypertension. I'm not sure of his highest weight but he has been losing weight and believes he will have gastric bypass sometime in February.
Anyway, I have been reading prior posts on here about obesity and SSR 02-1p. The hearing is Monday in front of a new ALJ in Harrisburg, Judge Myers. (I just mention that b/c I have not had a hearing in front of him yet = added stress.)
I'm not too worried about eliminating PRW b/c his left leg swells and is painful with standing and walking... other work in the sedentary/unskilled category could be an issue. He fits in a normal chair and needs to prop his leg occasionally to keep it from swelling. His PCP said he could sit w/out interruption for 4 hrs and sit a total of 8 hrs a day. He does not have sleep apnea so fatigue is not an issue, nor does he have excess fatty tissue in his hands so use of hands would not be a problem. But... I also have this to work with (which I believe supports my case):
I have a Medical Source Statement of Ability to do Work-Related Activities filled out by his PCP which says he can never "walk a block at a reasonable pace on rough or uneven surfaces" and never "climb a few steps at a reasonable pace w/ the use of a single handrail". Do I ask the ALJ to submit this information to an ME to determine medical equivalence to 1.02?
Just looking for some comments/suggestions. Thank you. _________________ Melissa M. Wohlsen, Esquire
Pyfer Partners
128 N. Lime Street
P.O. Box 1597
Lancaster, PA 17608
I would not ask for an ME. I would write a memo outlining a step 3 decision for equivalence. Some ALJ's will find equivalence all on their own.
SSR 96-5p provides:
Quote:
Opinions About Whether an Individual's Impairment Meets the Requirements of a Listed Impairment
Whether the findings for an individual's impairment meet the requirements of an impairment in the listings is usually more a question of medical fact than a question of medical opinion. Many of the criteria in the listings relate to the nature and severity of impairments; e.g., diagnosis, prognosis and, for those listings that include such criteria, symptoms and functional limitations. In most instances, the requirements of listed impairments are objective, and whether an individual's impairment manifests these requirements is simply a matter of documentation. To the extent that a treating source is usually the best source of this documentation, the adjudicator looks to the treating source for medical evidence with which he or she can determine whether an individual's impairment meets a listing. When a treating source provides medical evidence that demonstrates that an individual has an impairment that meets a listing, and the treating source offers an opinion that is consistent with this evidence, the adjudicator's administrative finding about whether the individual's impairment(s) meets the requirements of a listing will generally agree with the treating source's opinion. Nevertheless, the issue of meeting the requirements of a listing is still an issue ultimately reserved to the Commissioner.
Opinions on Whether an Individual's Impairment(s) Is Equivalent in Severity to the Requirements of a Listed Impairment
In 20 CFR 404.1526 and 416.926, equivalence is addressed as a "decision * * * on medical evidence only" because this finding does not consider the vocational factors of age, education, and work experience. A finding of equivalence involves more than findings about the nature and severity of medical impairments. It also requires a judgment that the medical findings equal a level of severity set forth in 20 CFR 404.1525(a) and 416.925(a); i.e., that the impairment(s) is "* * * severe enough to prevent a person from doing any gainful activity." This finding requires familiarity with the regulations and the legal standard of severity set forth in 20 CFR 404.1525(a), 404.1526, 416.925(a), and 416.926. Therefore, it is an issue reserved to the Commissioner.[2]
In your case, the PCP is providing an opinion on the patient's ability to ambulate, not on an issue reserved to the commissioner.
ALJs often (usually?) skip proper discussion of obesity. To make sure you lock in good District Court arguments, I suggest getting obesity-specific testimony from your client that links the obesity to specific symptoms and the severity of those all symptoms. For example, you can use the testimony to lock in a link between fatigue and obesity, depression and obesity, and whatever and obesity. Of course, you only will do this where the actual relationships exist, these are just examples. See SSR 96-7p for testimony-related details for any impairment.
Also, nail down obesity-related restrictions with treating source statements. See SSR 96-2p.
Then, when the ALJ skips obesity, you have a ready-made remand argument. _________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
403[at]traverlaw.com
In line with David's thoughts, don't forget that your claimant has to be able to stand and walk for about two hours per day for the full range of sedentary work. What are the limitations here? If he was working a 40 hour week, what would be the cumulative effect or limitation? When I talk with my claimants about this, almost all of them say they can stand for 15 minutes - half hour. But when I prompt them about the next time they have to do it, the maximum time is less and less throughout the day. Your guy sounds like he would need the option of sitting whenever he had pain while standing/walking, a further limitation.
If the PCP completed the standard SSA Medical Source Statement (HA 1151), occasionally is defined as "very little to one-third of the time." Well, which is it? Very little, one third, or something in between? Have your claimant nail it down with testimony.
Joined: 07 Nov 2007 Posts: 40 Location: Lancaster, PA
Posted: Thu Feb 04, 2010 05:19 pm Post subject:
UNFAVORABLE... ugh. No mention of obesity at step 3. Although it is not a Listing, I was under the impression that obesity could still be a severe impairment. The ALJ gave greater weight to the evidence in the record that my cl could walk atleast 2 hours in an 8-hour workday, despite what the MSS-P I submitted from his primary care physician said. At one point in the hearing a discussion took place about my cl's need to prop his leg frequently during the day to relieve swelling. The doctor's actually instructions were "as often as possible". My cl testified that he basically props his leg whenever he is sitting (which is most of the day). The VE testified that the jobs he said my cl could do (electrical accessories assembler, parking lot cashier, information clerk) he could NOT do if he had to prop his leg up at least waist high because it would cause him to be too far from his work station. So, I asked the Judge if we could send an interrogatory to his doctor to clarify how long my cl needed to prop his leg up during the day. Obviously I wanted the time to prop to be substantial as to eliminate those jobs and any other job. ALJ looked at me like I had two heads and said, "uh, NO".
Not sure where I'll go from here... just felt like sharing some of the aftermath/decision. _________________ Melissa M. Wohlsen, Esquire
Pyfer Partners
128 N. Lime Street
P.O. Box 1597
Lancaster, PA 17608
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