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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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