SSA Issues New Regulations for Evaluating Obesity

Recently, social security issued social security ruling 19-2p: for Evaluating Cases Involving Obesity. Social Security will apply the new Ruling to all new applications filed, or to any claims pending, on or after May 20, 2019 .

The new regulation SSR 19-2p finally establishes obesity as a standalone medically determinable impairment that alone can cause disability. Previously obesity could not be considered as a stand alone impairment, but rather could only be considered as an enhancement to another medically determinable impairment such as arthritis, diabetes, or heart disease.

The regulation outlines that the impairment of obesity must be based on “measured height and weight, measured waist size, and BMI measurements over time. Specifically, a BMI of 30 or higher or “a waist size greater than 35 inches for women and greater than 40 inches for men…” will generally establish an impairment of obesity. However, the Ruling emphasizes that “to have an impairment of obesity…” the person’s weight, measured waist size, or BMI must show “a consistent pattern of obesity.” Meaning there must a be a longstanding history of obesity and it must be documented in claimant’s medical records.

The regulation points out that no particular BMI or weight measurement alone establishes obesity as an impairment, but rather an individualized assessment of the effect of obesity on a person’s functioning is will be used when deciding if obesity is a severe impairment.

A severe impairment as defined by the social security administration is simply an impairment or combination of impairments that significantly limit the individual’s physical or mental abilities and, as a result, interfere with the individual’s ability to perform basic work activities such as walking, standing, sitting lifting, pushing, pulling, and reaching etc. Therefore obesity can be a severe impairment if it precludes a claimant from performing some of these basic work activities.

As stated earlier this is an important regulation as it will now allow for a claimant’s obesity to be a stand alone impairment that can be used to support a finding of disability in the absence of any other impairments. It is important to note however that in order for obesity to support a finding of disability it must still prevent the sustaining of gainful employment on a full time regular basis.

With the ever-changing legal landscape it is crucial that you have an experienced, qualified, and hardworking attorney on your side when applying for disability benefits. If you are hurt, injured, or unable to work please contact us at Bailey & Galyen for a free social security disability evaluation.

The Basics of Social Security Disability

When you find yourself disabled and unable to work there are two government programs available to provide for you and your family.

Social Security Disability Insurance or (SSDI)pays benefits to you and certain members of your family if you are found disabled and “insured,” meaning that you worked long enough and paid Social Security taxes long enough to obtain coverage.

Supplemental Security Income or (SSI) pays benefits based on financial need without regard for how much you may have paid into the system. SSI disability pays an average of 536 per month per individual. The maximum is set at 771.00 dollars in 2019, but social security will make deductions based on your living arrangements.
In order to qualify for SSI benefits you must demonstrate a financial need as well as have a finding of disability.

No more than 2K in the bank.

Typically your earned income cannot be higher than 751 dollars per month for a single and 2016.00 for a married couple.

Things like food stamps and sheltered provided by a NPO do not count.

In order to receive compensation from either program, you must prove that you have a physical or mental impairment which has lasted or will last for 12 months. This impairment must be severe enough to prevent you from working.

The determination of disability is based in large part on your medical records and your testimony at a potential hearing. It is important to have an experienced attorney represents you at your hearing in order for the judge to get the full picture of the disabling impairments that prevent you from working through your testimony.

A January 2019 Government study of hearings-level disability awards revealed that “claimants who had representation at their hearings, were awarded benefits at a rate nearly 3 times higher than those who proceeded without representatives.”

An Experienced attorney will ensure that all of your medical records are provided to the judge prior to your hearing. Your Attorney can also request that your doctor fill out forms and questionnaires specific to your individual injuries to maximize your chance at a favorable outcome. Lastly your attorney will be able to cross examiner potential vocational and medical experts during your hearing.

Impacts of Other Disability Programs on Social Security

I am often asked questions about other disability programs such as workers compensation, veterans benefits, and private disability policies and their potential impact on one’s eligibility for Social Security Disability.

In general an award for service connected disability through the VA, a workers compensation disability rating, and a private disability plan will not interfere with your eligibility for social security disability benefits.

However the standard for receiving benefits for each program are different and qualifying for one will not automatically qualify an individual for benefits from the other. Social security will always make their own determination of your disability independent of other government agencies, workers compensation ratings, or private insurance policy decisions.

Even claimants with an unemployable rating from the Veterans administration will still have to again prove their eligibility for disability through the social security program. Although Veterans are given expedited processing of their claims.

when dealing with workers compensation the amount of workers compensation you receive may have an impact on the amount of benefits you can receive from social security. However, it is imperative to start your claim as soon as possible to prevent any lag time between the expiration of your workers comp benefits and the beginning of social security benefits.

For individuals receiving private long term disability benefits you are also still eligible for disability benefits. And again as always it is always best to start your application as soon as possible in case your long term disability benefits lapse unexpectedly.

Early Retirement and Disability
If you are an older claimant 62 years of age or older and thinking about collecting early retirement because of an inability to sustain work. It is important to contact an attorney before making any determinations because you may be able to fight for your disability payments while collecting early retirement.

Claimant’s collecting early retirement can suffer as much as a 30% reduction in benefits when compared to their potential disability payments. In order to minimize that reduction we can file a claim a claim for disability, which if successful will allow you to recoup benefits lost due to the early retirement penalty.

Returning to Work

At Bailey & Galyen we understand that a disability determination isn’t necessarily a life sentence. Often times during the appeal process or even after an award things change and individuals may want to attempt to re-enter the work force.

At social security you are eligible for benefits if your injuries or impairments have kept you from working for a period of 12 months or more. This is called the 12 month durational requirement. Social security defines working as performing sustained gainful activity. Sustained gainful activity is presumed if you are making more than $1,120.00 per month. However, there is an exception that allows a person to attempt to re-enter the work force without breaking the 12 month durational chain.

This exception is called the unsuccessful work attempt. Essentially if you are forced from your employment because of your impairments for a significant period of time, typically over 30 days, any subsequent employment can be classified as an unsuccessful work attempt if the work stops because of your impairments within 6 months. It is important to understand that in order for the work to to qualify as an unsuccessful work attempt the work must stop because of the impairments within 6 months.

Once the 12 month durational requirement is satisfied or after an award of disability has been granted, social security provides a second avenue for claimant to attempt to re-enter the work force.

This avenue is called the trial work period. A trial work period allows for a disabled individual to attempt to re-enter the work force and earn over SGA amounts for a period of 9 months. During this trial period a claimant previously awarded SSDI benefits will continue to receive benefits. If a claimant’s appeal is pending then the work will not interfere with a potential finding of disability for that time period. If you are unable to continue your employment within the 9 month period then you will simply continue receiving benefits as you were prior to commencing the trial work period.

If the work extends past the nine month trial period then you can still pursue what is called a closed Period of disability benefits.

A closed period of disability means we will only pursue benefits for the time you were unable to work due to your impairments. Its is called a closed period of disability because it has a definitive beginning and ending date and you are not pursuing continuing benefits. A closed period of disability benefits applies if you were out of work for at least 12 months due to an impairment but successfully returned to work at a later date.

Do You Need an Attorney to File for Social Security?

The Short answer is No. Anyone can start an application for Social Security disability benefits at your local office or online. However just because you can do something doesn’t mean you should do something. The Government Accountability Office or the (GAO) recently released a study of hearing level awards for social security disability claims. The study revealed that claimants who had representation at their social security hearings were awarded at a rate nearly 3 times higher than those of claimants who proceeded without representation. The Study focused on a tmie period from 2007 through 2015,” and During that time 77% of claimant’s at social security hearings had attorney representation.

At Bailey & Galyen we have long championed the value of personal, quality, experienced representation at social security, but it is gratifying to have validation from an official source.

The report goes on to quotes social security officials stating, that a representative can help the claimant by ensuring that the medical evidence and other records are fully developed and help the claimant present their case at a hearing”.
This is true at Bailey and Galyen we have a dedicated team of attorneys and staff focused on ensuring that all medical documentation is provided to social security prior to any determination at every level.

In addition to medical records social security will also want detailed descriptions of your ability to function and your work history. Our attorneys will review ALL Paperwork prior to its submission to social security to ensure your limitations, work history and medical documents are accurate and timely.
Now more than ever, it is imperative that you have an experienced, qualified, and hardworking representative on your side when applying for disability benefits. If you are hurt, injured, or unable to work please contact us at Bailey and Galyen for a free case evaluation.

You can ride a horse without a saddle, but I wouldn’t recommend it.