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ALJ Reversed in Obesity Case

January 21, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Merely referring to a claimant’s failure to lose weight does not constitute consideration of obesity under Social Security Ruling (SSR) 02-1p.  In Sotack v. Astrue, 2009 WL 3734869 (W.D.N.Y. Nov. 4, 2009)(Hiller), Judge Telesca of the Western District remanded the claim for calculation of benefits where ALJ failed to consider the effects of obesity on the claimant’s ability to return to her past relevant work.

The 30 year old claimant had alleged disability based on deep vein thrombosis, sleep apnea, a weak heart and leg pain. The Commissioner’s argument to the contrary notwithstanding, the Court found that there was substantial evidence of record concerning the claimant’s obesity.  The ALJ’s mere mention that claimant’s physician had advised her to lose weight did not meet the requirements of SSR 02-1p.  Nor was that a sufficient basis for a finding under the SSR that the claimant had failed to follow prescribed treatment.

The Court held that the record contains substantial evidence of the limiting effects of claimant’s obesity, including the treating physician’s statement of claimant’s limitations in standing, sitting, lifting, etc., based on her fibromyalgia, DVT, sleep apneas, obesity and cardiomyopathy. The treating physician also noted that claimant would need to rest due to pain for a total of two hours per day.

As such, Judge Telesca ruled that no purpose would be served by a remand for further proceedings.  No doubt that was music to the ears of the claimant’s attorney, Amanda Jordan of the law offices of Kenneth Hiller.


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