Kenneth S. Apfel
Commissioner of Social Security
P.O. Box 1585
Baltimore MD 21235

RE: COMMENTS ON THE ELIMINATION OF OBESITY FROM THE LISTING OF IMPAIRMENTS (Proposed in 63 FR 11854)

Dear Commissioner Apfel:

The undersigned organizations are pleased to submit the following comments on the above captioned proposal to delete obesity from the Listing of Impairments. We appreciate the extension of the comment period to allow for our response.

It is the position of our organizations that the proposal should be withdrawn and reconsidered. The undersigned organizations are interested in working with the Social Security Administration in a cooperative process to improve the evaluation of obesity for purposes of Social Security disability determination.

Sincerely,

Morgan Downey, J.D.
Executive Director
American Obesity Association

On behalf of:

• American Obesity Association
• American Dietetic Association
• American Society of Bariatric Physicians
• American Society for Bariatric Surgery
• American Society for Clinical Nutrition
• Council on Size and Weight Discrimination
• Law Offices of Susan Wasserman
• National Organization of Social Security Claimants’ Representatives
• Obesity Law and Advocacy Center
• Shape Up America!

The American Obesity Association is a Delaware non-profit corporation headquartered in Washington D.C. It is organized as a 501(c)(4) tax-exempt organization for the purpose of advocating on behalf of persons with obesity.

The American Dietetic Association (ADA) represents nearly 70,000 food and nutrition professionals serving the public through the promotion of optimal nutrition, health and well being. Founded in 1917, ADA is the world’s largest group of food and nutrition professionals uniquely educated, trained, and qualified to provide nutrition services in the integrated health care setting. ADA and the ADA Foundation (a 501 (C)(3) corporation) maintain association headquarters in Chicago, Illinois, with a government affairs office in Washington, D.C.

The American Society of Bariatric Physicians is a nonprofit professional association of physicians who have a special interest in the study and treatment of obesity and other eating disorders. Through research, continuing education, and peer exchange of information, the Society seeks to encourage excellence in the practice of bariatric medicine. American Society for Bariatric Surgery

The American Society for Bariatric Surgery is an non-profit professional association of bariatric surgeons throughout the world.

The American Society for Clinical Nutrition, Inc, (ASCN) is the premier society for clinical nutritionists in medicine and health sciences. ASCN has approximately 1,500 members comprised primarily of MD’s and PhD’s who work to encourage and expand research, education, and clinical training in nutrition. ASCN is the publisher of the American Journal for Clinical Nutrition.

The attorneys of the Law Offices of Susan R. Wasserman have practiced disability law since 1981. Its attorneys include a former staff attorney from the Social Security Administration, a retired Administrative Law Judge also formerly with the Social Security Administration, and other attorneys who exclusively practice Social Security law, handling thousands of cases through the Social Security Administration and the federal courts.

The National Organization of Social Security Claimants’ Representatives is committed to providing the highest quality representation and advocacy on behalf of persons seeking Social Security and Supplemental Security Income.

The Obesity Law & Advocacy Center is the only private law practice in the country solely dedicated to representing persons with morbid obesity in claims involving discrimination based on size or assisting clients in obtaining access to appropriate health care treatment related to their morbid obesity.

Shape Up America! is a 501(c)(3) not-for-profit organization founded in 1994 by former U.S. Surgeon General C. Everett Koop. The purpose of Shape Up America! is to promote the achievement and maintenance of a healthy weight for life through improvements in dietary habits and increased physical activity.

1. Summary: The Proposal to Eliminate Obesity from the Listing of Impairments

On March 11, 1998, the Social Security Administration published a Proposed Rule to delete "Obesity" from the Listing of Impairments to adjudicate claims for disability under titles II and XVI of the Social Security Act when evaluating claims of individuals at Step 3 of the sequential evaluation process. (63 Fed. Reg. 11854.) The proposal asserts that "[c]urrent medical and vocational research demonstrates that, while many individuals with obesity are disabled, obesity, in and of itself, is not necessarily determinative of an individual's inability to engage in any gainful activity."(Id.)

In order to meet the medical criteria for the listing of impairments, claimants must have both body weight equal to or greater than provided tables (generally 100% above desired level) and one of the following:

A. History of pain and limitation of motion in any weight bearing joint or the lumbosacral spine (on physical examination) associated with findings on medically acceptable imaging techniques of arthritis in the affected joint or lumbosacral spine; or,

B. Hypertension with diastolic blood pressure persistently in excess of 100mm. Hg measured with appropriate size cuff; or,

C. History of congestive heart failure manifested by past evidence of vascular congestion such as hepatomegaly, peripheral or pulmonary edema; or,

D. Chronic venous insufficiency with superficial varicosities in a lower extremity with pain on weight bearing and persistent edema; or,

E. Respiratory disease with total forced vital capacity equal to or less than 2.O L or a level of hypoxemia at rest equal to or less than the values specified in provided tables.

Without the obesity listing, a claimant will have to meet the medical criteria of the pulmonary, musculoskeletal or cardiovascular systems without an evaluation of the disabling effect of his or her weight. If he or she does not meet these listing criteria, the claimant’s disability will be considered at steps four and five of the sequential evaluation process. Thus, the impact of obesity, now scrutinized under objective standard, will be assessed without medical criteria, in proceedings prone to bias and inconsistency.

The Social Security Administration has not disclosed the medical and vocational research on which this proposal is based. Independent research, conducted by the medical, legal and public health organizations submitting this comment, has not uncovered the scientific basis for the proposed deletion. On the contrary, the medical and scientific literature overwhelming indicates that:

1. A wealth of scientific and medical literature studies indicate that obesity is a reasonable predictor of disability.

2. Severe Obesity meets the purposes and requirements of the Listing of Impairments regarding both mortality and morbidity.

It is also important to point out what the Social Security Administration has not said. It has not said that claimants under this listing are engaging in willful conduct. It has not said that the current criteria is difficult to administer. It has not said that this diagnostic category has become too expensive for the system to support. It has not said that the current criteria lend themselves to abuse.

The Social Security Administration claims that "no reliable conclusions may be drawn about disability in most obese individuals." (63 Fed. Reg. 11855) This is inaccurate and misleading. It is misleading because Social Security does not make disability decisions on obesity alone. One of five conditions has to also be present. It is inaccurate because the scientific literature from the United States and abroad is replete with correlations of obesity and health risks as well as effects of obesity on education, employment and discrimination. It also defies common sense. According to the apparent reasoning of the Social Security Administration, we are asked to believe that any individual of ‘normal weight’ can, in effect, carry his or her own weight for 24 hours a day, 365 days a year, for year after year and have no disabling functional limitation. Common human experience would indicate that a person of ‘normal’ weight could not support carrying twice that weight without any disabling functional limitation.

The obesity listing, however, combines severe obesity from the weight tables with specific disorders of the musculoskeletal, cardiovascular, peripheral vascular, and pulmonary systems. The existence of these complications ensures that the Social Security Administration can indeed form reliable conclusions regarding an individual's ability to work. The obesity listing enables disability examiners to make bright line determinations on the very few individuals who meet this criteria.

Indeed, the overwhelming scientific and medical evidence points to the tremendous increase in risk of both mortality and morbidity for persons who meet the Social Security Administration’s current criteria. As such, the Social Security Administration has failed to present any justification for its proposal to delete the listing.

The Social Security Administration has proposed to delete the cross-references to obesity contained in the medical criteria for the respiratory system. (63 Fed. Reg. 11856) Therefore, none of the remaining medical criteria will consider the aggravating factor of severe obesity. This is inappropriate because, as the Social Security Administration acknowledges in its current introduction to the obesity listing criteria:

Long-term massive obesity will usually be associated with disorders of the musculoskeletal, cardiovascular, peripheral vascular, and pulmonary systems, and the occurrence of these disorders is the major cause of disability at the listing level. Extreme obesity results in restrictions imposed by body weight and the additional restrictions imposed by disturbances in other body systems. (Appendix 1 to Subpart P--Listing 9.00, Endocrine System and Obesity, 20 C.F.R. § 404 (1997)

Claimants who do not meet the medical criteria in the Listing of Impairments must be evaluated on a case-by-case basis. If the Social Security Administration eliminates severe obesity from the listing, there will be no criteria for disability examiners to assess the special medical symptoms of severely obese disabled persons. At best, this will result in confusion, hardship to the claimant, and delay in obtaining disability benefits. At worst, it will result in a failure to identify truly disabled individuals. In our society, severely obese individuals are constantly subject to prejudice and discrimination. The obesity listing's objective medical criteria serve to check the subjective bias and humiliation that individuals with obesity appear to encounter throughout the disability examination process.

The Affected Population

According to the National Health Interview Survey (NHIS) the chronic health conditions most frequently causing work limitation are back disorders, heart disease, osteoarthritis and related disorders and diseases of the respiratory system, mental disorders, orthopedic impairments of lower extremities and diabetes. (Chartbook on Work and Disability in the United States, 1998) According to the Social Security Bulletin, Annual Statistical Supplement, 1997, there were 197,272 workers disabled under the endocrine, nutritional and metabolic disorders category, representing 4.7% of all disabled workers. 88,000 of these workers were men, and 111,100 were women. The distribution by age is fairly uniform for men in this category (approx. 3.4%) but increases dramatically for women from 2.9% of the under 30 years of age category to 7.9% of those aged 55 to 59.

The weight tables promulgated by the Social Security Administration do not use Body Mass Index (BMI). BMI expresses the relationship between weight and height that is used to asses morbidity and mortality associated with overweight and obesity. BMI is frequently used by researchers and clinicians. Our comments have translated the Social Security Administration weight tables to a minimum Body Mass Index (BMI) of 45-49 for men, and 43-45 for women. In this way, we can correlate the Social Security listing with scientific research which predominately uses BMI. However, it should be noted that other measures are useful in determining risks of excess body weight, such as waist-hip ratios, waist circumference and percentages of body fat. The disadvantage of the percent-of-ideal weight tables is that they were developed primarily using a Caucasian, higher socioeconomic status population. In addition, they are based on mortality outcomes and are not necessarily a predictor of morbidity.

A BMI of >40 has been categorized in various ways including morbid obesity, Class IV, etc. Many terms are pejorative. For purposes of this response, we have chosen to refer to the level BMI >40 as “severe obesity.”

However, readers should be advised that studies quoted below may use various BMI levels for defining obesity and use other terms, e.g. morbidly obese.

Severe obesity is relatively uncommon, affecting no more than 0.5% of obese persons and thus only slightly >0.1% of the population. (The Merck Manual of Diagnosis and Treatment, 16th Edition, 1992). Severe obesity is a chronic intractable disorder (Gastrointestinal Surgery for Severe Obesity, National Institutes of Health Consensus Development Conference Statement, March 25-27, 1991) The psychological aspects of severe obesity are controversial. Some studies report no unusual psychological disorders. Other studies report a high prevalence of binge eating disorder among morbidly obese female subjects. (Stunkard, AJ, Psychological Aspects of Severe Obesity, Am J. Clin Nutr, 1992;55:524S- 532S). Obese binge eater studies have found a higher lifetime prevalence of major depression, panic disorder, and personality disorder than nonbinge obese subjects. (Hsu, LK, Nonsurgical Factors That Influence the Outcome of Bariatric Surgery: A Review, Psychosomatic Med. 1998,:60:338-346).

Severe obesity is overrepresented in lower socio-economic groups and among women. Obesity is inversely related to socioeconomic status in women and is associated with both downward social mobility and lower levels of socioeconomic attainment, further impairing the quality of life for persons with severe obesity. (Sarlio-Lahteenkorva S, Psychosocial Factors and Quality of Life in Obesity, Int. J. Obesity Related Metabolic Disorders, 1995; Nov. 19 Supp. 6:S1-S5)

The impact of the proposed rule on minorities and minority women is especially important. The National Health and Nutrition Examination Survey, 1976-1980 (NHANES II) found that obesity is a greater problem for minority populations than it is for whites, and a greater problem for women than it is for men. (Van Itallie, T, Health Implications of Overweight and Obesity in the United States, Ann Int Medicine, 1985;103: 983-988 and Manson JE, A Prospective Study of Obesity and Risk of Coronary Heart Disease in Women,” NEJM, March 29, 1990;322:13, Pages 882-889, both cited in " Pi-Sunyer, FX , Health Implications of Obesity, Amer J Clin Nutr, June 1991; 53, (Supplement): 1595S.) Hispanic Americans, including Puerto Ricans, Mexican Americans and Cuban Americans all have higher levels of obesity that U.S. non-Hispanic whites. (Pawson IG, Prevalence of Overweight and Obesity in U.S. Hispanic Populations, Am J. Clin Nutr 1991, June, Vol. 53, (Supplement, No. 6) Page 1525S.) ( Mein S, Concerns and Misconceptions about Cardiovascular Disease Risk Factors: A Focus Group Evaluation with Low-Income Hispanic Women," Hispanic Journal of Behavioral Sciences, 1998, May, Vol. 20; 2:192.) North American native populations have a very high prevalence of obesity. ("Obesity Among North American Indians," Gail G. Harrison, in Obesity (Per Bjorntorp et al. eds., J.B. Lippincott Co. 1992) Page 610.) ("The Pima Paradox," Malcolm Gladwell, The New Yorker, February 2, 1998, Page 45.) There is also a particularly high prevalence of obesity in African American women. (Kumanyika, SK, "The Impact of Obesity on Hypertension Management in African Americans," Journal of Health Care for the Poor and Underserved, 1997, Vol. 8;3:353.)

The American Dietetic Association has noted, “Minority women carry a disproportionate burden of health problems. They suffer shorter life expectancy, experience higher maternal and infant mortality, and have a higher incidence of chronic diseases such as diabetes and hypertension. Women’s overall health status is further diminished by higher rates of poverty, lack of education, and limited or nonexistent access to medical care,” (Position of the American Dietetic Association and the Canadian Dietetic Association: Women’s Health and Nutrition, ADA Reports, 1995, Mar. 95;3:362)

Persons with severe obesity have a greater avoidance of this disability than other disabled persons have of their own disability. Patients who lost 100 lbs. or more and who successfully maintained weight loss for at least three years following gastric restrictive surgery for severe obesity viewed their previous severe obese status as having been extremely distressful. In spite of the strong proclivity for people to evaluate their own worst handicap as less disabling than other handicaps, patients said they would prefer to be normal weight with a major handicap (deaf, dyslexic, diabetic, legally blind, very bad acne, heart disease, one leg amputated) than to be morbidly obese. All patients said they would rather be normal weight than a morbidly obese multimillionaire. (Rand CS, MacGregor AM, Successful Weight Loss Following Obesity Surgery and the Perceived Liability of Morbid Obesity, Int J. Obes, 1991, Sept;15:577-579)

Persons with severe obesity are not a widely studied population. The relatively few persons are widely distributed across the United States. (Social Security Bulletin, Annual Statistical Supplement, 1997). For most individuals at this level of obesity, conventional weight loss treatments are ineffective for producing large weight losses of long duration. The appropriate treatment for many persons with severe obesity is bariatric surgery. Much of the information on this population comes from non-randomized studies conducted with persons admitting themselves to hospital centers specializing in this type of surgery.

The persons most affected by this proposal are women, especially minority women. They rely on Social Security for both income replacement payments (about $577.10 per month for women compared to $788.50 for men) and especially (after a two-year waiting period) on eligibility for Medicare for their health insurance. (See Chartbook, above.)

For individuals with severe obesity, Social Security determinations represent the difference between some income and access to health care and no income and no health services. The outcome of this regulatory proposal is, thus, a life or death decision for thousands.

Background of the Obesity listing

In 1968, the Social Security Administration first adopted the medical criteria known as the "Listing of Impairments," establishing the level of severity of impairments to qualify for disability benefits. (33 Fed. Reg. 7244, May 16, 1968) The presence of an impairment that meets the criteria in the listing is usually sufficient to establish that an individual is prevented from doing any gainful activity (20 CFR 404.1525).

In 1978, the Social Security Administration proposed changes in the listing, including the addition of medical criteria for obesity, after consultation with the Bureau of Disability Insurance's Medical Consultant Staff (10 full-time and 120 part-time physicians), regional office medical consultants (approximately 100 physicians), Disability Determination Services' physicians ("well over 600"), and other government and outside-government medical groups. (43 Fed. Reg. 29955, July 12, 1978.) The final regulation adopted the proposed criteria for obesity in its entirety. (44 Fed. Reg. 18170, March 26, 1979.) Other than a minor revision in 1985 (recognizing the influence of elevation on air pressure differences) (50 Fed. Reg. 50069, December 6, 1985), the current obesity listing is identical to that first proposed in consultation with more than 800 physicians in 1978.

In 1995, the Social Security Administration published notice of its proposal to revise the obesity listing. Discussing the previous minor revision in 1985, the notice states "[t]here have been numerous advancements in medical science and technology in evaluation and treatment of endocrine and morbid obesity conditions since then." (60 Fed. Reg. 24193, May 8, 1995.)

Yet the notice of proposed rule presently under consideration refers to no such advances. Rather than refine the criteria, as was suggested in its earlier notice, this proposal eliminates the obesity listing entirely, along with its cross-references.

II. LEGAL OBJECTIONS

A. The Proposed Rule Is Invalid Because the Social Security Administration Has Not Followed Proper Procedures for Notice and Comment Rulemaking

The Social Security Administration claims to rely on "current medical and vocational research" in its proposal to eliminate obesity from the listing of impairments. The proposed rule violates the Administrative Procedures Act, 5 U.S.C. § 553(b)(3), in that it fails to inform the public of the substance behind eliminating this impairment, and fails to provide a description of the subjects and issues involved. An agency may not rely on background information that has not been revealed in its notice. In United States v. Nova Scotia Food Prods. Corp., the court invalidated a rule issued by the Food and Drug Administration that had been based on undisclosed scientific data in the agency's possession when it issued the notice of proposed rulemaking. (United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977).) "When the basis for a proposed rule is a scientific decision, the scientific material which is believed to support the rule should be exposed to the view of interested parties for their comment." (568 F.2d at 252.)

On May 7, 1998, the American Obesity Association asked for an extension of time to comment on the proposed rule. A sixty (60) day extension was granted. Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, on May 15, 1998, the American Obesity Association requested a copy of all information related to the proposed rule to eliminate obesity as a listed impairment. The National Organization of Social Security Claimants’ Representatives filed a similar request under FOIA on April 20, 1998. On June 8, 1998, Mr. Darrell Blevins of the Social Security Administration's Office of Disclosure Policy informed a staff member of the American Obesity Association that its FOIA request was subject to a delay of several months. The interested parties are thus left unable to review these critical materials before the close of the comment period.

On June 9, 1998, the American Obesity Association requested a further extension of time, for an additional ninety (90) days after the Social Security Administration responds to its FOIA request. The request was not answered by the time of the filing of this comment. On June 29, 1998, an AOA staff member telephoned the Social Security Administration regarding the status of its FOIA request. Ms. Bonnie Davis, of the Office of Disability Policy, informed the AOA employee that there was no literature that satisfied the FOIA request.

If the Social Security Administration does not reveal the background information it drew upon to eliminate obesity as a listed impairment, it violates due process requirements. The Nova Scotia court held "[t]o suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether. For unless there is common ground, the comments are unlikely to be of a quality that might impress a careful agency. The inadequacy of comment in turn leads in the direction of arbitrary decision-making." (568 F.2d at 252.) The court in National Black Media Coalition v. F.C.C. similarly overturned an agency regulation because the proposed rule, based on critical but unpublished information, was "wholly inadequate to enable interested parties to have the opportunity to provide meaningful and timely comment." (National Black Media Coalition v. F.C.C., 791 F.2d 1016, 1022 (2d Cir. 1986).) "It is 'arbitrary or capricious' for an agency not to take into account all relevant factors in making its determination." (791 F.2d at 1024.)

B. The Proposed Rule is Invalid Because it is Arbitrary and Capricious

The Social Security Administration has not considered all the material facts and issues relevant to the obesity listing. The proposed rule's flaw, however, goes beyond the failure to disclose the information upon which this decision is based. The published rationale for eliminating the obesity listing, that "obesity, in and of itself, is not necessarily determinative of an individual's inability to engage in any gainful activity" (63 Fed. Reg. 11854, March 11, 1998), indicates that the agency considered the effect of obesity alone, rather than obesity at the listing levels in combination with one of the five serious medical conditions required for a finding of disability.

Obesity is a complex disease that exacerbates the disabling impact of arthritis, hypertension, heart conditions, and respiratory ailments. This is the rationale for including obesity in the listing of impairments. On July 12, 1978, the Social Security Administration published its proposal to add obesity to the listing of impairments, stating:

Criteria have been provided for the evaluation of obesity based upon the common complicating factors. The criteria require more than the documentation of findings almost universally associated with marked obesity (e.g., peripheral edema, dyspnea on exertion): the requirement is to document congestive heart failure (or a history of this) with peripheral edema (or other evidence of significant vascular congestion), (or other evidence of significant vascular congestion), respiratory disease, including a finding of dyspnea, with specified abnormalities of pulmonary function tests, etc. (43 Fed. Reg. 29957 (July 12, 1978).

The final rule including obesity in the listing of impairments was published in the Federal Register on March 27, 1979. (44 Fed. Reg. 18170) Publication of the final rule included a discussion of comments received following the notice of proposed rulemaking. One commenter stated that the new criteria would have little effect because the findings required under the obesity listing establish disability even without obesity. The Social Security Administration's response follows:

The criteria under this section do have to have some relationship to similar impairments described under other body systems. However, they also take into account the contributing complication of obesity when it reaches the extremes specified by the tables. For example, the subsection dealing with arthritis of a weight bearing joint does not require evidence of the advanced joint pathology required in the comparable section in the musculoskeletal section. We omitted this criterion for the obese person because we recognize the decreased ability of an impaired joint to bear the stress produced by extreme obesity. We also concede that joint pathology associated with extreme obesity will progress rapidly. (44 Fed. Reg. 18175 (March 27, 1979) (Emphasis supplied)

Clearly, the Social Security Administration carefully evaluated the impact of obesity on other body systems when it developed this medical criteria twenty years ago. The current proposal to delete the criteria fails to identify any advances in the intervening period necessitating the changes as proposed. This renders the rule arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. 706(2)(A). An agency must give "reasoned consideration to all the material facts and issues, articulate with reasonable clarity its reasons for decision, and identify the significance of the crucial facts." (Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).) The agency's "fundamental task" is to take a "hard look" at the salient problems. (444 F.2d at 851.) "Reasoned decision promotes results in the public interest by requiring the agency to focus on the values served by its decision, and hence releasing the clutch of unconscious preference and irrelevant prejudice." (444 F.2d at 852. (footnote omitted.)

III. SCIENTIFIC AND MEDICAL OBJECTIONS

A. A wealth of scientific and medical literature studies indicate that obesity is a reasonable predictor of disability.

The Social Security Administration justifies the proposed regulation that,

“there is no generally accepted current medical and vocational knowledge which establishes that even massive obesity, per se, has a defined adverse effect on an individual’s ability to work: i.e., even long-term, massive obesity at the level specified in the listing does not necessarily cause limitations that would prevent an individual from engaging in any gainful activity. Associated disorders of the musculoskeletal, cardiovascular, peripheral vascular, and pulmonary systems are generally the major cause of disability at the listing level in obese individuals but, unless the associated disorder(s) is itself of listing-level severity, no reliable conclusions may be drawn about disability in most obese individuals. Rather, it is necessary to consider the effect of any disorders related to or aggravated by obesity on each individual, on a case-by-case basis, in order to determine whether the individual is disabled.”(63 Fed. Reg. 11854 et seq).

A case by case determination is inherently subject to demonstrations of bias and stigma commonly directed to individuals with severe obesity. This stigma exists in society in general and in the health care profession in particular. This stigma can bias case-by-case evaluation against persons with severe obesity. In addition, however, it is clear that the other categorical listings are not adjusted for an individual’s excessive weight. The purpose of the listing process appear to be a reasonable effort to identify medical criteria likely in the great majority of cases to indicate inability to engage in gainful activity. Current medical literature indicates that severe obesity is an excellent predictor of disability in and of itself. A review of the literature indicates major interest in evaluating at what level of overweight (usually using BMI and other indicators) the health risks begin. Nonetheless, it is clear that obesity is a major cause of morbidity and mortality. As Kelley Brownell and Judith Rodin have stated, “To argue that greater levels of excess weight are not associated with increased risk is to dismiss an abundant and consistent literature.” (Brownell KD, Rodin J. 1994 The Dieting Maelstrom, American Psychologist, 49:9m 781:791) When obesity is combined, as required under the current regulation with one of five other impaired systems, the predictive value for determining disability is overwhelming.

According to Albert J. Stunkard:

Overweight of 100% (BMI greater than 35), traditionally termed “morbid obesity” defines a level at which the risks of obesity appear to make surgical intervention a reasonable option -a judgment supported by years of experience. The distribution of body weight in the general population is highly skewed, and the percentage of persons falling into the three categories varies greatly: 90% of obese persons are mildly obese, and no more than 0.5% are severely obese. In earlier years, this classification of obesity was useful in selecting appropriate treatments, and it still is. It also served as the best estimate of risk to individuals. Thus mild obesity was associated with the least risk, moderate obesity with greater risk, and severe obesity with the greatest risk. These estimates of risk still hold, particularly for the category of severe obesity, which confers increase risk on most (and greatly increased risk on some) severely obese persons. (Treatment of the Seriously Obese Patient, Wadden, TA, VanItallie,TB 1992, at p.34) Emphasis added.

More recently, Stunkard reports,

Furthermore, all risks associated with obesity are increased with increasing weight and are very high in patients with severe obesity, who have a body mass index (BMI) that is >40 or who weigh 100% above ideal body weight. (Stunkard, AJ Current View on Obesity, , Amer J of Medicine, 1996;100; Feb: 230-236)

According to Current Medical Diagnosis & Treatment, 1998,

“Obesity is associated with significant increases in both morbidity and mortality. A great many disorders occur with greater frequency in obese people. The most important and common of these are hypertension, type II diabetes mellitus, hyperlipidemia, coronary artery disease, degenerative joint disease, and psychosocial disability; but certain cancers (colon, rectum, and prostate in men; uterus, biliary tract, breast, and ovary in women), thromboembolic disorders, digestive tract diseases (gallstones, reflux esophagitis), and skin disorders are also more prevalent in the obese. Surgical and obstetric risks are greater as well. Obese patients also have a greater risk of pulmonary functional impairment, endocrine abnormalities, proteinuria, and increased hemoglobin concentration.

The death rate increases in proportion to the degree of obesity: Relative weights of 130% are associated with an excess mortality rate of 35% and relative weights of 150% a greater than two-fold excess death rate. Patients with “morbid” obesity (relative weight>200%) have as much as a ten-fold increase in death rate. (at p.1161)

Severe Obesity is a Chronic Impairment Expected to Result in Death

“The Listing of Impairments describes for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity. Most of the listed impairments are permanent or expected to result in death, or, a specific statement of durations is made.” (20 CFR 404.1525(a) Severe obesity meets the requirement regarding expectation of death.

Severe obesity has long been associated with an increased risk of sudden death. This observation was initially made by Hippocrates more than 2,000 years ago. This has been confirmed by numerous epidemiologic studies including the Framingham and the Wadsworth Veterans Administration study. Severe obesity is also associated with cardiomyopathy, Pickwickian/sleep apnea syndrome, Pituitary/gonadal dysfunction, acanthosis nigricans, osteoarthritis and sudden death. (Bray,GA, Pathophysiology of Obesity, Am J. Clin Nutr, 1992;55:488s-494s)

The incidence of sudden death unexplained by autopsy may be up to 40 times higher in severely obese subjects as compared with the general population (Sjostrom, LV, Mortality of Severely Obese Subjects, Am J. Clin Nutr, 1992, Feb: 55 (2 Suppl): 516S-523s).

Severe Obesity is a Chronic Impairment Severe Enough to Prevent a Person from Doing any Gainful Activity

Obesity is associated with an increased risk for insulin resistance, hypertension, dyslipidemia, cardiovascular disease, non-insulin dependent diabetes mellitus, gallstones and cholecystitis, respiratory dysfunction, and certain forms of cancer. Increases in weight are associated with increases in blood pressure. Persons who were only 20% overweight had an eightfold greater incidence of hypertension. The increased risk for hypertension also leads to an increased risk for stroke. In the Framingham study, every 10% increase in relative weight was associated with an increase in plasma cholesterol of 12 mg/dL. Triglycerides have generally been found to be higher in obese compared with lean persons. A higher BMI has been positively associated with the occurrence of each category of coronary heart disease. Even mild to moderate overweight increased the risk for coronary heart disease. The risk for diabetes has been reported to be about twofold in mildly obese, fivefold in moderately obese, and 10-fold in severely obese persons. The NHANES II data found that the overall relative risk of having diabetes was 2.9 times higher for obese persons who are 20 to 75 years of age. A prospective study in Scandinavia showed that moderate obesity was associated with a 10-fold increase in the risk for diabetes. This risk increased steeply as obesity became more severe. Increasing weight is associated with a greater prevalence of gallbladder disease in both crossectional and longitudinal studies. Gallstones occur three or four times more often in obese than in nonobese persons. The prevalence increases with age and with increasing obesity. Obesity affects respiratory function. Increased fat in the chest wall and abdomen reduces lung volume, alters the respiratory pattern, and causes a decreased compliance of the respiratory system. Vital capacity and total lung capacity are frequently diminished. In more severe obesity, a ventilation-perfusion abnormality occurs which is characterized by hypoxia but normal arterial Pco2. As the severity of obesity increases sleep apnea occurs with greater frequency. An increased prevalence of osteoarthritis with increasing weight has been described repeatedly in cross-sectional studies As weight increase in men and women, the prevalence of osteoarthritis increased from 0.75% to 1.45% in men and from 0.4% to 1.45% in women. ( Pi-Sunyer, FX, Medical Hazards of Obesity, Ann. Intern. Med. 1993;119(7 PT 2):655-660)

Patients who are more that 50% overweight have been found to have a 50% prevalence of left ventricular hypertrophy (LVH), an abnormal enlargement of the heart. Obesity produces predominately LVH and left ventricular chamber dilation or eccentric hypertrophy. Body weight and body surface area have been shown to be powerful determinants of left ventricle chamber size, wall thickness, and muscle mass. When compared with lean counterparts obese patients with eccentric LVH had a markedly increased prevalence and complexity of ventricular ectopy. These findings demonstrate a greater risk for sudden death and other cardiovascular morbidity and mortality. (Lavie, CJ, Messerli, FH, Cardiovascular Adoption to Obesity and Hypertension, Chest, 1986, Aug; 90 (2): 275-279). Additionally, when compared to a non-arthritis group, those with severe overweight (> 30 BMI) arthritis had significantly greater difficulty with activities of daily living (personal care and household tasks), gross mobility (walking) and functional limitations. (Verbugge, LM, Risk Factors For Disability Among U.S. Adults with Arthritis, J. Clin Epidemiol, 1991, 44;2:167-182

The impact of obesity on the health related quality of life (HRQL) can be measured with the widely used Medical Outcomes Study Short Form 36 Health Survey (SF-36), a self-administered 36 item questionnaire that assesses 8 domains of functioning. Compared with general population norms, participants with a mean BMI of 38.1 reported more impairment on all eight quality of life domains, especially bodily pain and vitality. Those with a mean BMI of 48.7 reported significantly worse physical, social, and role functioning, worse perceived general health, and greater bodily pain than did either those with mean BMI’s of 29.2 to 34.5. Persons with obesity reported significantly greater disability due to bodily pain than did patients with other chronic medical conditions with the exception of migraine. Using the HRQL makes it possible to quantify the magnitude of the effects of a particular medical condition and to make comparisons with persons experiencing other medical ills or with those having no medical condition. This study found that, ,relative to U.S. population norms, obese persons seeking university-based weight loss treatment reported substantial decrements in HRQL, that the impact of obesity on HRQL varied with severity of obesity, and that functional disability among obese persons due to bodily pain was particularly common - comparable to that of chronic migraine sufferers. Compared with patients in the other obesity severity classifications, obese persons in the mean BMI category of 48.7 scored worse in all domains except mental health and role limitations due to emotional problems. The pattern of these results indicates that as weight increases, HRQL related to the physical domains becomes more adversely affected. The authors state, “Interestingly, obesity had the most adverse effect on the bodily pain scale. Although obesity has been known to be associated with musculoskeletal or joint-related pain, the impact of this pain on functioning and well-being has not been well-documented. Because the SF-36 bodily pain scale measures the severity of pain as well as the extent to which it affects normal day-to-day activities, it can serve as a marker of disability associated with excessive body weight.” (Fontaine KR, Health-Related Quality of Life in Obese Persons Seeking Treatment. J. Fam Pract, 1996, Sept;43(3):265-279).

In an investigation of the relationship between body mass index, weight change and the onset of disability in older women. The BMI range for the two cohorts in this study was from 22.9 to 28, far below the Social Security Administration Listing of Impairment level. The author notes:

Several avenues of study point to the contribution of body weight to the development of disability in older persons. High body mass index (BMI) , a measure of weight standardized for height, has been shown to be positively associated with prevalent disability, with new disability pensions issued to young and middle-aged adults, and with short-term risk for developing problems in physical functioning among the oldest-old. Other studies have shown an increased risk for disability in association with diseases related to weight status, including cardiovascular disease, arthritis, diabetes, and pulmonary disease. These studies suggest an important long-term contribution of body weight to the onset of disability in older women, although none have addressed this issue....In both cohorts, the crude rate of incident disability increase with level of past BMI. After adjustment for age, education, cigarette smoking, and study time, high past BMI was associated with a twofold increase in the risk of disability while mid past BMI was positively but nonsignificantly associated with disability....High BMI may influence the risk for disability in several ways, including increasing wear and tear on various joints or reducing the flexibility of movement. High BMI may also be a proxy for inactivity and disuse, which lead to a reduced capacity or reserve in neurological and musculoskeletal systems and functional decline. High BMI may also increase the risk for diseases that may have a more direct impact on the development of disability... . This study suggests that a high BMI is an important contributor to disability and should be of major concern in the attempt to compress morbidity in later years. (Launer, LJ, Body Mass Index, Weight Change, and Risk of Mobility Disability In Middle-aged and Older Women, The Epidemiologic Follow-up Study of NHANES I, JAMA, 1994, 27;114: 1093-1098)

Similarly, in the Swedish Obesity Study (in which obesity was defined as a BMI of 30 or greater):

BMI proved to be associated with risk of disability pension and also with mortality. These findings support the results gained by other investigators, who found that overweight increased the risk for early retirement. The high pension rate among the obese men was, as expected, mainly a result of an increased morbidity in illnesses that are related to obesity, e.g., diseases of the circulatory and musculoskeletal systems. The risk of disability from mental disorders was increased as well, a finding contradictory to previous results....Thus, according to the findings in this study, obesity in particular remains a risk factor for disability and mortality. Severe overweight also affects risk of morbidity in a wider context, quality of life and for society, increased costs for health care and loss of productivity. (Mansson N, Body Mass Index and Disability Pension in Middle-Aged Men - Non-Linear Relations, International Journal of Epidemiology, 1996,25;1:80-85)

The relationship between BMI and the ability to perform functional tasks among community-dwelling elderly concluded in the following:

This study demonstrates that nutritional status, as indicated by the body mass index, is related to the functional capabilities of community-dwelling elderly. This relationship fits roughly the same U-shaped curve that had previously described the relationship between mortality and body mass index. Thus, it is not only the person who is overweight (excessive weight for height) that is at risk for functional disability, but also the underweight person (low weight for height). Furthermore, low and high body mass index were still related to functional status when other pertinent variables were controlled for through multivariate analysis, and even after sample members who had died within 2 years of the completion of the study were removed. (Galanos, AN, Nutrition and Function: Is there A Relationship Between Body Mass Index and the Functional Capabilities of Community-Dwelling Elderly?, J. Amer Geront Society, 1994, April, 42;4:368-373)

Further evidence of the relationship of obesity to the likelihood of engaging in significant gainful employment can come from looking at the lost work days due to obesity and the use of medical resources. A report published in March of this year by Anne M. Wolf and Graham A. Colditz, estimated costs of obesity in the United States. Their research demonstrated a 88% increase in physician office visits associated with obesity from 42.9 million in 1988 to 81.2 in 1994, using a BMI cutoff of 25 for overweight and 30 for obesity. In addition, they report a total of 52,591,480 work days were lost because of obesity which amounted to approximately $4.9 billion in 1995. In 1994, there was a total of 58,456,780 work-lost days, amounting to approximately $5.7 billion in 1995. 70% of the work-lost days from obese women. (Wolf, AM, Colditz, GA, Current Estimates of the Economic Cost of Obesity in the United States, Obesity Research, 1998, Mar. 6:2:97-106)

The devastating employment discrimination directed against persons with severe obesity has also been studied. In one such study, 80% of all preoperative patients and 84% of the female patients in this group continued to be unemployed while those figures dropped to 53% and 64% in the postoperative group, respectively. Overweight as the reason for unemployment was more frequent in the preoperative group, whereas full-time housekeeping was the main reason for unemployment in the postoperative group. This study reported that the chances of successful employment increase after weight-reducing surgery. “The higher employment rate and possibly job promotion resulted in a higher yearly income of the overall postoperative group.... Several studies on economic changes showed increased employment and income after surgically induced weight loss. Hawke et al studied the physical activity and social status of 240 patients 3 years after gastric restrictive surgery. They found that full and part-time employment increased from 38% before to 60% after surgery. Naslund and Argren compared the socioeconomic status of 79 patients after gastric restrictive surgery with a similar group of 54 nonsurgical patients. After surgical treatment, 81% of the patients were employed compared with 65% of the nonsurgical patients.” (Gemert, WG, Quality of Life Assessment of Morbidly Obese Patients: Effect of Weight-Reducing Surgery, Am J. Clin Nutr 1998;67:197-201.)

According to Stunkard and Wadden,

Canning and Mayer reported lower acceptance rates into prestigious colleges for obese high school students compared with normal-weight students, even when controlling for all other relevant variables. Similarly, Pargaman found obese students seriously underrepresented in a private college. When they seek employment and on the job, obese persons face further discrimination. Roe and Eickwort reported 16% of employers said that they would not hire the obese women under any condition and an additional 44% would hire them only under special circumstances. A careful study of executives revealed that discrimination against the obese is further manifested in their earning potential: it has been estimated that each pound of fat cost an executive $1000/year. (Stunkard, AJ, Wadden, TA, Psychological Aspects of Severe Obesity, Am J. Clin Nutr, 1992;55:524S-532S).

Individuals with obesity perceive discrimination and prejudice against them as their heaviest burden. This paper reported improvements in employment of patients after bariatric surgery in South Australia, Sweden and the United States. (Kral, JG, et al. Assessment of Quality of Life Before and After Surgery for Severe Obesity, Am J. Clin Nutr, 1992, Feb,: 55 (2 Suppl):611s-614s)

There is a well-documented connection between obesity and employment discrimination, and employment-related victimization. (Popovich, PM, Criteria Used to Judge Obese Persons in the Workplace," Perceptual and Motor Skills, December 1997, Vol. 85, Pages 859-866) (Rothblum, ED, The Relationship between Obesity, Employment Discrimination, and Employment Related Victimization," Journal of Vocational Behavior, 1990;37: 251-266.)

III. PUBLIC POLICY OBJECTIONS

A. The Obesity Listing Furthers the Social Security Administration's Goals

The medical criteria for obesity in the listing of impairments serves a useful function in the adjudication of claims. The listing puts emphasis on objective medical findings, promoting uniform, fair decision-making throughout the Social Security Administration's many disability determination offices. It permits the agency to identify disabled individuals efficiently and objectively. Eliminating the obesity listing means that the agency will have to conduct unnecessary one-by-one evaluations. This additional processing time will result in hardship to claimants and increased costs to the Social Security Administration.

Continuation of the current process will not disadvantage the Social Security Administration. If the Social Security Administration believes that an individual claimant who meets the listing is, engaged in substantial gainful activity, it has the authority to deny or to cease benefits and protect its resources.

The failure of the Social Security Administration to adhere to the Administrative Procedures Act is a civil rights violation in that it particularly harms women and minorities. The Social Security Administration's failure to articulate a sound reason to eliminate this impairment from the listing discriminates against a particular disability and violates the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.

The Social Security Administration has failed to identify the medical or scientific basis for its proposal to eliminate obesity from the listing of impairments. This leaves no lawful grounds on which to base this proposal, inviting speculation as to the real reasons for selecting persons with severe obesity for termination of disability benefits. This speculation erodes the public confidence in the Social Security Administration.

B. The Proposed Change Unfairly Subjects Persons with Severe Obesity to Stigma and Discrimination

Most importantly, the proposed change will promote the expression of bias against persons with severe obesity. The proposal to eliminate obesity from the Listing of Impairments will leave persons with severe obesity vulnerable to bias against them on the basis of their disability. Obesity is a particularly unpopular and unsympathetic impairment. It is immediately visible to others and impossible to conceal. Many Americans inversely link a person's weight and size to their moral measure. The degree of obesity is often directly related to the level of prejudice and discrimination confronted in social and employment settings. (Cassell, JA, Social Anthropology and Nutrition: A Different Look at Obesity in America, Journal of the American Dietetic Association, 1995, April, 95;4:424.)

As indicated earlier, persons at the level of obesity with a BMI >40 are not a well studied population. These individuals do present to bariatric surgeons for assistance. Therefore, the experience of bariatric surgeons is of particular importance. According to George S. M. Cowan, Jr, MD , President of the International Federation for the Surgery of Obesity:

The morbidly obese appear to their fellows as billboards of their own nonconformity. The larger they grow, the more people view them as flaunting society, flaunting convention, deviating from society’s accepted wisdom of ‘not letting yourself go’. As such, they tend to be visualized as deviants placed on a level together with transvestites, alcoholics, drug addicts and homosexuals. All of these categories but the obese are, to some extent, currently protected by ‘political correctness’; as a consequence, the morbidly obese person has assumed the role of a modern day moral equivalent of a leper.” (Cowan, GSM, What do Patients, Families and Society Expect From the Bariatric Surgeon? Ob Surg. 1998;8:77-85)

It is well established that persons with severe obesity suffer from extraordinary stigma in our society. Researchers summarized the experiences found in their study:

Discrimination against the obese occurs in hiring and promotion opportunities and in acceptance to college. Official guidelines limit the weight of military personnel and commercial flight attendants. Obese individuals also pay higher life insurance premiums. It is probable that morbidly obese adults arouse more prejudice and experience more discrimination than adults who are less obese... Far more prejudice and discrimination appear to be directed against obese women than against obese men... Preoperatively, patients reported experiencing an overwhelming amount of prejudice and discrimination; postoperatively, patients reported experiencing almost no prejudice or discrimination.... Preoperatively, 40% or more of patients answered “always” or “usually” to every item describing acts of prejudice or discrimination and to the two items on access to public facilities. More than 80% of the patients answered “always” or “usually” in the following four situations: “I feel that my weight has negatively affected whether or not I have been hired for a job” (86.9%); “At work people talk behind my back and have a negative attitude toward me related to my weight” (90.9%); “I do not like to be seen in public because of my weight” (84.0%); and “Because of my weight I avoid fast food restaurants with booths” (80.6%). .. No patient reported the same degree of prejudice and discrimination experienced postoperatively. (Rand, CS, Morbidly Obese Patients’ Perceptions of Social Discrimination Before and After Surgery for Obesity, So. Med. J. 1990, Dec, 83:12:13980-1395)

An earlier paper noted,  

The social stigma against obesity is extraordinary in its magnitude and pervasiveness. As Fitzgerald (1981) notes: “Public derision and condemnation of fat people is one of the few remaining social prejudices...allowed against any group based solely on appearance...It is well documented that obese people are denied educational opportunities, jobs, promotions, and housing because of their weight. The affront to those who are obese goes beyond the almost uniform judgment that they are unattractive and includes negative stereotypes that begin early in childhood. The aversion to obesity is evident by kindergarten and grade-school children consistently associate larger body shapes with adjectives such as “stupid.” “dirty,” lazy,” “sloppy,” “mean,” ugly,” and “sad”...Harsh attitudes toward the obese depend on the assumption that they bring their condition on themselves through lack of willpower and self-control. (Garner, DM, Wooley, SC, Confronting the Failure of Behavioral and Dietary Treatments for Obesity, Clinical Psychology Review, 1991,11;6:729-780)

Overweight during adolescence has social, economic and psychological consequences, including effects on high school performance, college acceptance and psychological performance. One study found a greater prevalence of overweight among women who were downwardly mobile socially than among those who were upwardly mobile. In a prospective study of 10,039 adolescents and young adults, their social and economic characteristics and self-esteem were evaluated over seven years. The results indicated that overweight adolescents and young adults marry less often and have lower household incomes in early adult life than their nonoverweight counterparts, regardless of their socioeconomic origins and aptitude test scores. The authors conclude, “Evidence from several studies indicates that obese persons, particularly women, are highly stigmatized in the United States. There is evidence of discrimination against obese person, including “employer prejudice, and lower-than-expected levels of occupational attainment among overweight workers.” (Gortmaker, SL, Social and Economic Consequences of Overweight in Adolescence and Young Adulthood, , NEJM, 1993, Sept. 329;14:1008-1012)

Health professionals also hold negative stereotypes. Studies indicate that their professional judgment is negatively influenced by their client's weight. (McArthur, LH, Attitudes of Registered Dietitians toward Personal Overweight and Overweight Clients, Journal of the American Dietetic Association, 1997, Jan;1: 63-66.) (Agell, G, Effects of Clients' Obesity and Gender on the Therapy Judgments of Psychologists, Professional Psychology: Research and Practice, 1991;22:3: 223-229.)

The negative bias that persons with severe obesity encounter is entrenched throughout our society. Without objective medical criteria by which to assess their disability, persons with severe obesity will be discriminated against in the disability process.

The Social Security Administration is not immune to discrimination against persons with severe obesity. In Stone v. Harris, 657 Fed. 2d, 210, (1981), the Eighth Circuit Court of Appeals considered whether substantial evidence supports a finding that Stone was able to perform gainful sedentary work. Stone filed for disability when she was twenty-three years old. She was five feet tall and weighed over 250 lbs. In addition to obesity, she had skeletal deformities of the feet and could not stand for long periods. She reported pains “all over.” She completed high school, the last two years by correspondence so that she could avoid the ridicule her obesity drew. The Administrative Law Judge found she was unable to work in her former jobs (dishwasher and motel maid). The Social Security Administration challenged the disability determination and a lower court concluded that Stone’s obesity had no established physiological cause, therefore her obesity was remedial. The Court of Appeals wrote, “The agency is certainly not entitled to presumptions that obesity is remediable or that an individual’s failure to lose weight, is “willful.” The notion that all fat people are self-indulgent souls who eat more than anyone ought appears to be no more than the baseless prejudice of the intolerant svelte. Modern studies debunk this myth.” (Emphasis added)

[NB. It is not clear if the intervening passage of the American with Disabilities Act would be an additional claim in such a circumstance. Federal courts have held that severe obesity is a disability under the Rehabilitation Act of 1973 (Codified as amended at 29 U.S.C. §§ 701-796) (Cook v. Rhode Island, 10 F.3d 17 1st Cir. 1993). ]

The Social Security Act is one of the humanitarian hallmarks of America. It would violate the spirit of the Act and sound public policy to withdraw income support and access to medical care from individuals with severe obesity and one of the five complicating factors, who have extraordinary risks of death and disease, suffer stigma and discrimination on the basis of not one scientific study. 

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