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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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