Smithers, What’s the Name of This Gastropod? King-size Homer and the Social Security Administration’s Subjective Evaluation of Fatness

• Jurisdiction: United States,Federal
• Citation: Vol. 29 No. 2
• Publication year: 2010
• topic: Administrative Law,Social Security

Georgia State University Law Review

Volume 29 j 2

Issue 2 Winter 2013

4-3-2013

Smithers, What's The Name of this Gastropod? King-Size Homer and The Social Security Administration's Subjective Evaluation of Fatness

Christopher Pashler

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Recommended Citation

Pashler, Christopher (2013) "Smithers, What's The Name of this Gastropod? King-Size Homer and The Social Security Administration's Subjective Evaluation of Fatness," Georgia State University Law Review: Vol. 29: Iss. 2, Article 2. Available at: http://digitalarchive.gsu.edu/gsulr/vol29/iss2/2

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SMITHERS, WHAT'S THE NAME OF THIS GASTROPOD? KING-SIZE HOMER AND THE SOCIAL SECURITY ADMINISTRATION'S SUBJECTIVE EVALUATION OF FATNESS

Christopher Pashler*

Abstract

The Social Security Administration has recently come under criticism for its subjective evaluation of disability claims. Recent studies of the Agency's decisions indicate that great variances in allowance rates continue to exist within the ALJ corps. These variations in decision-making are a challenge to the Agency's credibility, given the real likelihood that disability applications filed by similarly situated adults are treated differently by the ALJ corps. Prior works have looked at inconsistency at different levels in the disability certification process, but this scholarship has not sufficiently examined why similarly situated claimants are treated differently by the Agency. This Article, however, looks at inconsistency in decision-making by focusing on a single impairment—obesity. Prior to 1999, the Agency used Medical Listing 9.09 to evaluate applications involving obese claimants, and the Medical Listing provided specific criteria for the evaluation of the impact of obesity on co-morbid conditions. This Article reviews appeals to the federal courts of adverse disability determinations concerning obese claimants following the repeal of Medical Listing 9.09 where the claimant's Body Mass Index (BMI) could be ascertained. This review illustrates that individuals with similar BMIs are not evaluated consistently by the Agency. These variations occur because the protocols subsequently adopted by the Agency to

* Assistant Professor of Legal Skills, SUNY Buffalo. B.A., The State University of New York; J.D., The University of Iowa College of Law. The author thanks Professor Robert Rains for his thoughtful comments on an earlier draft of this Article. The author is grateful to Kathleen Devereaux for her many critiques and her patience. SUNY Buffalo law students Chelsea Heinz, Rachel Miller, Kim Rowles, and Jon Cantil provided outstanding support.

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evaluate obesity provide little guidance as to how to evaluate the epidemiological link between fatness and health. Reform is necessary because the Agency will not be able to achieve accurate and consistent decisions in claims involving obese claimants until protocols that reflect a better understanding of how obesity impacts both health and functional limitations are developed.

Table of Contents

Introduction.................................................................................361

I. The Limits Of The Common Sense Approach..........................367

II. Obesity And The Medically-Centered Definition Of

Disability................................................................................373

A. The Concept Of Disability And The Definition Of Disability............................................................................376

B. The Five-Step Sequential Evaluation Process.....................379

C. The Medical Listings Of Impairments.................................382

III. Medical Listing 9.09 And The Agency's Current

Protocols For The Evaluation Of Obesity......................388

A. Medical Listing 9.09............................................................389

B. The Agency's Current Protocols For The Evaluation Of Disability: SSR 02-1p.........................................................393

IV. The Agency's Evaluation Of Obesity Following The Repeal Of Medical Listing 9.09 And The Quest For

Good Decision-Making.........................................................397

A. Review Of Case Law............................................................399

B. Points Of Vulnerability For The Obese Claimant...............403

1. A Most Dangerous Step: Is Obesity a Severe

Impairment?.................................................................403

2. Does Obesity Exacerbate Other Health Concerns?.......406

C. Why Reform Is Necessary....................................................408

V. Fatness As Disability. Really?.............................................413

A. Obesity And The Conceptual Models Of Disability.............414

B. Can Obesity Fit Within A Conceptual Framework Of Disability? .......................................................................... 417

Conclusion....................................................................................419

2013] king-size homer and the ssa's evaluation of fatness 361

Introduction

In 1999, the Social Security Administration (SSA or Agency) repealed Medical Listing 9.09,¹ which provided objective criteria for the evaluation of obesity in applications for either Title II (SSDI) or Title XVI (SSI) benefits. The Medical Listing was replaced by SSR 02-1p (Ruling).² Like Medical Listing 9.09, SSR 02-1p relies on Body Mass Index (BMI) to classify and evaluate obesity.³ Unlike Medical Listing 9.09, which classified obesity as a listing-level impairment, SSR 02-1p requires decision makers to consider obesity at four steps during the five-step sequential evaluation process.⁴ The Agency suggested these changes would ensure that disability claims involving obesity would be evaluated in an appropriate manner.⁵ The

1. Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 Fed. Reg. 46,122 (Aug. 24, 1999) (to be codified at 20 C.F.R. pt. 404) (deleting Medical Listing 9.09, Obesity, from the Medical Listing of Impairments). SSA uses the Listing of Impairments (Medical Listing) at Step 3 in its five-step sequential evaluation process. The five-step sequential evaluation process will be described at infra Part 11(B). The Medical Listing identifies a number of eligibility criteria related to physical or mental impairments that the Agency has determined are severe enough to warrant granting disability without regard for the vocational considerations relevant to the statutory definition of disability. Inst. of Med. of the Nat'l Acads., Improving the Social Security Disability Decision Process 66-67 (John D. Stobo, Michael McGeary & David K. Barnes eds., 2007) [hereinafter IOM Final Report]. At Step 3, the decision maker for the Agency evaluates whether the objective medical evidence shows that the impairment meets or medically equals the Listing. The repeal of Listing 9.09 comes at a time when the number of Americans ages 18 to 64 with reported activity limitations grew during the 1990s, and the prevalence of conditions that contribute to disability, including physical inactivity and obesity, also increased among this age group. Inst. of Med. of the Nat'l Acads., The Future of Disability in America 17-18 (Marilyn J. Field & Alan M. Jette eds., 2007) [hereinafter The Future of Disability in America]. Additionally, childhood obesity rates have increased. Id. The increase in obesity, especially in adults, is problematic because studies have shown that there is a strong correlation between adult obesity and disability. See, e.g., Kenneth F. Ferraro et al., Body Mass Index and Disability in Adulthood: A 20-Year Panel Study, Am. J. Pub. Health, May 2002, at 834, 839 (study finding obesity was consistently related to disability, especially disability involving the lower extremities).

2. Initially, the Agency adopted SSR 00-3p in 2000, which was later superseded by SSR 02-1p in 2002 to reflect revisions to criteria for establishing disability. SSR 02-1p did not materially change SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 551 n.4 (3d Cir. 2005).

3. See SSR 02-1p, 67 Fed. Reg. 57,859 (Sept. 12, 2002). This Ruling requires that a claimant's obesity be considered at multiple steps during the five-step sequential evaluation process. Id.

4. Revised Medical Criteria for Determination of Disability, Endocrine System and Related

Criteria, 64 Fed. Reg. at 46,127.

5. While Homer Simpson did not apply for SSDI/SSI benefits, The Simpsons episode King-Size Homer unintentionally illustrates the difficulty SSA must have in its evaluation of SSDI/SSI applications that allege obesity as a severe impairment. See The Simpsons: King-Size Homer (Fox television broadcast Nov. 5, 1995). For one, reactions to obesity and beliefs about the etiology of obesity

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purpose of this Article will be to discuss my review of case law concerning obese claimants that suggests the repeal of Medical Listing 9.09 has complicated how obesity is evaluated in the adjudication of disability applications and has led to inconsistent results between similarly situated claimants. The Agency's inability to reach accurate and consistent disability determinations concerning obese claimants is perhaps best illustrated by one man's predicament—Homer Simpson.⁶

Frustrated by the burdens of work at the nuclear power plant in Springfield, Homer Simpson, in an episode of The Simpsons, learns about his employer's disability program from a colleague who dryly refers to it as the "lottery that rewards stupidity."⁷...