In the Spring 2008 Newsletter

Challenges Facing Social Security Disability:
From the Association of Administrative Law Judges Roundtable Meeting
By Scott B. Elkind, Esq., Silver Spring, MD

I was invited to participate in a new roundtable event hosted by the Association of Administrative Law Judges at the National Press Club in Washington, DC on January 15, 2008. The roundtable addressed the challenges facing the Social Security Disability Program.

Several notable speakers were present, including the Comptroller General of the United States, David Walker; Former SSA Commissioners Jo Anne Barnhart and Sanford Ross; and other representatives from the Social Security Advisory Board. Conspicuously absent from this meeting was the current Social Security Commissioner, Michael Astrue.

The information gathered from this meeting only leads to the conclusion that . . .

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Your Free CLE Reference Materials

REPRESENTING THE MILDLY BRAIN-INJURED CLIENT: A MULTIDISCIPLINARY APPROACH
By Bruce H. Stern, Princeton, NJ

One of the most challenging cases that a trial attorney will handle involves the representation of a mild traumatic brain-injured (MTBI) client. In contrast to actions involving clients suffering from fractures or herniated discs, which are easily and objectively documented, proving the case and, consequently, obtaining fair compensation for a MTBI client is much more difficult. This type of litigation requires the utilization of a multidisciplinary approach of medical and scientific experts, as well as lay witnesses who knew the plaintiff both before and after the accident. In order to properly represent an individual with a mild traumatic brain injury, one needs to retain among others, a neurologist, a neuropsychologist, a physiatrist, a neuropsychiatrist, a vocational rehabilitation expert, a life care planner and a biomechanical engineer. This diverse approach enables the attorney to present a well-rounded picture for the jury, portraying the client’s injuries and limitations, as each expert complements the others’ testimonies and opinions.

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This paper, available free to members of the Social Security Disability Law Section, was presented at the 2007 AAJ Annual Convention in Chicago. Copyright © 2007 American Association for Justice. Further reproduction of any kind is prohibited. For more information, call AAJ Education at (800) 622-1791. To purchase other papers, visit the AAJ Exchange.

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Titles II and XVI: Evaluating Cases Involving Tremolite Asbestos-Related Impairments

As a continued benefit of your AAJ section membership, I have been monitoring rulings and developments from the Social Security Administration (SSA). Today, the SSA posted a Social Security Ruling, which provides guidance on the types of impairments that may result from tremolite asbestos and how to evaluate such disability claims under titles II and XVI of the Social Security Act. A summary of this Ruling is included below and a copy of the Federal Register excerpt can be found at 71 Fed. Reg. 30467.

This Ruling explains that the SSA follows a five-step sequential evaluation process for asbestos-related claims:

1. The SSA will determine whether the individual is working and whether the work constitutes substantial gainful activity (SGA). If the individual is not engaging in SGA, then the SSA moves to step two.
2. The SSA will evaluate whether the individual has a medically determinable impairment that is "severe." For chronic pulmonary insufficiency, SSA will review medical history; findings from a physical exam(s); and spirometric pulmonary function tests. An individual must receive a tissue biopsy in order to establish the presence of malignant mesothelioma and bronchogenic carcinoma. If a biopsy is performed, SSA requires submission of both the operative note and pathology report or other hospitalization records. When determining whether the impairment is severe, the SSA will consider the effects of any symptoms that could limit functioning.
3. If an individual has a severe impairment, the SSA will then consider whether the impairment meets the Listing of Impairments in appendix 1, subpart P of 20 CFR part 404.
4. If an individual can do past relevant work, the SSA will determine that the individual is not disabled.
5. If an individual's impairment prohibits the performance of past relevant work or if there has been no past relevant work, the SSA will evaluate whether the individual has the ability to adjust to other work.

This Ruling was effective May 26, 2006. I will keep you posted on any subsequent rulings that might be helpful in your practice.

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