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Obesity Listing Deleted
Effective October 25th,
1999, the Social Security Administration will delete Category
of Listed Impairments §9.09, found in 20 CFR 404, Subpart P,
Appendix 1. The agency had first proposed deleting the obesity
listing in March of 1998. 63 F.R. 11854. Literally hundreds of
individuals and organizations commented against the change and
as a result the Social Security Administration did not
implement the proposal. Now and in spite of the earlier
adverse reaction, the Social Security Administration proposes
to delete the listing and will only concede that obesity is a
medically determinable impairment which may be considered in
conjunction with other impairments in determination of
disability. The pretext by which the government justifies its
action is that the listing was "...difficult to administer,
subject to misinterpretation and required findings of
disability in some cases in which the claimants were clearly
not ‘disabled’ as defined in the Social Security Act." In
effect, the agency maintained that the listing for obesity
could be satisfied with only minimal additional findings over
and above mere specified weight levels and this would not
impose a sufficient burden on the disabled.
Among the comments considered by the agency were those
submitted by the American Obesity Association. These comments
expressed concern that the deletion of the obesity listing
could be misinterpreted to imply that obesity is now
considered a characterologic, rather than medical disorder.
The agency’s response has been that no discrimination is
intended and that they are merely looking toward implementing
an "...efficient and legally appropriate method of determining
that people who meet the listings are disabled." Further, the
agency indicated that it was not "...targeting specific kinds
of impairments for review or exclusion from the listings...nor
(should it be assumed) that obesity and other medical
impairments are ‘volitional.’"
Until October 25th, 1999, obese individuals are
still entitled to be determined to be disabled under the
existing listing. Since the effective date of the change is
October 25th, 1999, particular note should be paid
to any cases which are currently of listing level. They should
still be granted. For practitioners not especially familiar
with the obesity listing, it should be noted that obesity, in
conjunction with venous insufficiency, arthritis of a major
weight-bearing joint or the spine, persistent hypertension or
pulmonary insufficiency often results in a listed level of
impairment under the Social Security Act.
This article is taken from the Winter 1999 newsletter of the
Social Security Disability Law Section of the
Association
of Trial Lawyers of America.
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