New paper from the Social Science Research Network

"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, Forthcoming
Buffalo Legal Studies Research Paper No. 2012-043

CHRIS PASHLER, SUNY Buffalo Law School
Email: chrispas@buffalo.edu

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 BMI are not evaluated consistently by the Agency. These variations occur because the protocols subsequently adopted by the Agency to 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 limitation are developed.