Publish Post
Monday, August 31, 2009
Thursday, April 2, 2009
Document Management Systems in the Legal Field
Many years ago I worked in the legal field and I am currently a Social Security Disability Advocate/paralegal working on my Bachelors Degree in Paralegal Studies. My immediate career goal is to obtain my Juris Doctoris degree and then become a licensed attorney. I have over twenty years of hands-on knowledge in computer hardware and software technical support and an added personal benefit is having a husband who specializes in Document Management Systems (DMS) software design, implementation and support. In my future law practice I intend to utilize the latest technological advances to make my vision of a paperless office a reality. (Scordamaglia, R. 2008 Unit 3 Paper)
Technology today is beginning to advance into the legal field. One example available today helps with legal research. You can now find volumes of reference material on most any subject with just a few moments of searching. Previously, this research was done in a law library and took hours or days and even was sometimes fruitless. The legal search engine and the world-connected Internet have all but made the law library and ‘stab in the dark’ searching obsolete. Another beneficial technology example is software that makes giving a presentation easier in court as well as looking more professional. Also, there are many different software programs out there than can help make managing a law firm and its documents more efficient. One way to help manage this paperwork is to digitize all of these documents and case files. One of the new technologies available is Document Management Systems (DMS). (Scordamaglia, R. 2008 Unit 3 Paper)
The legal profession has been wed to paper for a long time. Surveys have shown that sixty one percent of all attorneys will print paper copies of their email correspondence to save it in case files. This creates a mess of paper and electronic records. (Krause, J. 2007) With that in mind, my primary focus in this final project will be on Document Management Systems (DMS) and how it can help to advance the legal profession.
A document management system (DMS) is a computer system used to track and store electronic documents and/or images of paper documents. There are quite a lot of issues that are involved in managing documents. A lot depends on if the current system is an informal paper-based system for one person or if it is a formal structured computer enhanced system for many people in numerous locations. (Scordamaglia, R. 2008 Interview with Peter Scordamaglia)
There are numerous factors to think about when implementing a DMS. Besides the hardware and software that is needed for this sort of system, there are many other questions that need to be considered. In creating a DMS system the following must be taken into consideration: location, filing, retrieval, security, creation, authentication, disaster recovery, retention periods, archiving, distribution, and work flow. The important considerations in all DMS would be how are these documents and images created, how will documents or images be stored, how will these documents be organized and/or indexed and who needs to have access to these documents and images. Consideration for security is very important, unauthorized personnel must be prevented from reading, modifying or destroying documents, as is disaster recovery of files. Files must be able to be recovered if there is a fire or flood. (wikipedia.com)
The most important goal in the legal field is that time is of the essence and we need to make sure things are done before their deadline. I think that DMS could greatly help to achieve that goal. The true goal for DMS technology is to think digital. The goals of going digital and going paperless have the same objectives which are finding the right way to handle, use, store and share documents that are used/produced as well as finding a way that is cost effective at accomplishing all the tasks that are needed. (Accounting Technology, Sept 2007)
Many companies must conform to document control procedures outlined by regulatory agencies such as ISO, OSHA, EPA, FDA, and others by implementing wide-ranging compliance procedures. One of the biggest problems in meeting regulatory compliance with hardcopy procedures is that there is no fool-proof way to guarantee that every employee is aware of and is following the latest procedures. In addition to the compliance complexity is the plethora of document generators, different types of document formats and handwritten and hardcopy documents created every day. With that in mind, a good DMS must be capable of handling all these issues in a way that remains invisible to users (Harrold, D. 2000)
In the past, law firms have stored reams upon reams of paper in client case files. Most offices have filing cabinet loaded to capacity with files. These files take up expensive office and storage space. It can sometimes take hours, sometimes days to track down files. The problem with files is it will only get worse, with an average paper volume that grows about twenty five percent each year. (Weiss, M., 1994) With DMS technology law firms are no longer restricted to storing these papers and works in progress in paper folders. They are slowly starting to become “paperless” offices by using DMS technology. (Stimpson, J., 2004)
DMS deals with the creation, management and distribution of document based information. The impact and deployment of a DMS system will vary across organizations. One of the companies that I have found that specializes in DMS is Global 360 Inc. Global 360 Inc is a primary provider of Business Process Management (BPM) and Optimization solutions for Global 2000 organizations (Global360.com) Global 360 can deliver consulting services including analysis, design, development, testing, implementation, installation, upgrade, and maintenance of Global 360 Enterprise solutions. Peter Scordamaglia, a Global 360 employee whom I interviewed in my Unit 5 Project, explained to me that each and every DMS system is custom designed for the needs of the client. All information is factored into the system design to make the system as efficient as possible for the client. Peter hit upon things I did not think to consider with the questions he asks to potential clients. The greatest thing that varies is the cost of implementing a DMS system. (Scordamaglia, R. 2008, Interview with Peter Scordamaglia)
There are many benefits to implementing a DM System. The most important benefit in my opinion would be that a DM system enhances document control and security. An economical benefit would be lower costs for document creation and document distribution. Other benefits to DMS would be better employee collaboration, improved and customized access to databases, faster document creation and document updating capabilities, and improved productivity. (Bielawski, L. 1997)
Currently there are very few law firms, courts or agencies that are utilizing DMS technology. Social Security Administration (SSA) is one agency that is embracing this technology by using digital files in place of paper files. I currently work as a Social Security Disability Advocate and I have found this technology fantastic. It makes case files easier to find since they are digital. No more digging into filing cabinets looking for files. Also the files can not be misplaced and more than one person can view the documents at the same time. (Scordamaglia, R. 2008 Unit 5 Project)
Digital technology can greatly enhance a law firm. Digital documents are now as legally valid as paper thanks to the Electronic Transactions Act, (Bland, V., 2007). The Electronic Signatures in Global and National Commerce Act signed by President Bill Clinton in 2000 allows electronic signatures to complete transactions in a fully electronic environment. (Minihan, J., 2001). All documents and case files would be digital and any scanned document could be found within a few seconds. A DMS system can incorporate many different documents and keep them in order digitally. In a case file you could store word processing documents, e-mail, spreadsheet files, presentation files, audio and or video depositions and more. All of them could be available almost instantaneously. DMS can also help with Electronic Discovery. Recently there have been changes to the Federal Rules of Civil Procedure, which are the government-mandated rules for all legal proceedings, and some of these changes made electronic discovery more acceptable (Kruse, C. 2007).
However, the system would not be fully automated and there still would be human interaction in this technology. Someone would need to scan in documents to the system. Someone would have to place values into the DMS to allow for the retrieval of these digital documents, to allow others to search for these documents. DMS looks like a very smart way to handle all the enormous amounts of paperwork that come into law firms on a daily basis. It is a better way to organize all those documents and store them. DMS is the future way that law firms, courts and many agencies will be handling their paperwork because it is eco-friendly; there would be no need to keep paper copies of files, it is more secure because access to the files can be controlled with user names and passwords and most of all its entirely practical. (Scordamaglia, R., 2008, Unit 5 Project)
References
Bielawski, L. (1997). Electronic Document Management Systems. Upper Saddle River, New Jersey: Prentice Hall.
Bland, V. (2007, October). No more lost files. NZ Business, 21(9), 44-47. Retrieved June 30, 2008, from Business Source Premier database.
Document Management Systems on Wikipedia.com located at http://en.wikipedia.org/wiki/Document_management_system last accessed on June 21, 2008
Global 360 Inc. (2008). Global 360 Inc. Retrieved June 30, 2008, from Global 360, Inc. Web site: http://www.global360.com
Harrold, D. (2000, September). DIGITAL PAPER. Control Engineering, 47(10), 100. Retrieved June 30, 2008, from Business Source Premier database.
Hemphill, B. and Gibbaro, G. (1998). Simplify our Workday. Pleasantville, NY: The Reader's Digest Association Inc.
Krause, J. (2007, May). Eek Is for E-Mail. ABA Journal, 93(5), 62-62. Retrieved June 27, 2008, from Business Source Premier database.
Kruse, C. (2007, March 5). New Federal Electronic Discovery Rules Raise The Bar For Document Management. National Underwriter / Property & Casualty Risk & Benefits Management, 111(9), 17-18. Retrieved June 30, 2008, from Business Source Premier database.
Minihan, J. (2001, October). Electronic Signature Technologies: A TUTORIAL. Information Management Journal, 35(4), 4. Retrieved June 27, 2008, from Business Source Premier database.
Scordamaglia, Rosemarie (2008) [Interview with Peter Scordamaglia, Systems/Business Analyst from Global 360 Inc on Document Management Systems, Holiday Florida on June 13, 2008]
Scordamaglia, Rosemarie (2008) Unit 3 Project HU 310-03: Culture, Society and Advanced Technology Course at Kaplan University.
Scordamaglia, Rosemarie (2008) Unit 5 Project HU 310-03: Culture, Society and Advanced Technology Course at Kaplan University.
Scordamaglia, Rosemarie (2008) Unit 7 Project HU 310-03: Culture, Society and Advanced Technology Course at Kaplan University.
Stimpson, J. (2004, January). Diving Into Document Management. Practical Accountant, 37(1), 30-33. Retrieved June 30, 2008, from Business Source Premier database.
Think Digital, Not Paperless. (2007, September 2). Accounting Technology, Retrieved June 30, 2008, from Business Source Premier database.
Weiss, Mitchell Jay, (1994, November) Journal of Accountancy, Vol.178, Issue 5, p73-76, Retrieved July 2, 2008, from Business Source Premier database.
Tuesday, March 31, 2009
Understanding Your Political Typology
In politics, ideology means everything. In politics, ideology is constantly changing. Older political movements of the left, right and center are developing into distinctive entities, or are gradually falling off the political map. Newer political movements are fighting their way into importance with bold ideas and extreme platforms. Therefore, it is very important to identify where your ideology fits in politically. One way to do this is to understand your political typology. After answering the questionnaire / survey on the Pew Research Website, I was very surprised by the results. I have always considered myself a moderate independent. I would even go as far as stating the when I was younger I leaned a bit more to a liberal point of view. However, imagine my surprise when the results of my survey stated that based on the answers to the questions, I fit into the social conservative group.
Social Conservatives represent eleven (11) percent of the American public and thirteen (13) percent of registered voters. Social Conservatives are one of three core Republican groups. Out of these Social Conservatives 82% are registered Republicans, and 18% are registered Independent/No Preference. Social Conservatives are predominantly white (91%), female (58%) and the oldest of all groups (average age is 52 with 47% being 50 or older), nearly half live in the south. Most Social Conservatives attend church weekly (53%) and 43% are white evangelical Protestants. In the past Social Conservatives would have been called Moralists or Moderate Republicans.
Social Conservatives are fairly more religious than Enterprisers are. Half of Social Conservatives cite newspapers as a main source of news; the Fox News Channel (34%) and network evening news (30%) are their primary TV news sources. Social Conservatives are supportive of an assertive foreign policy and very conservative on social and cultural issues. In policy terms, they split from the Enterprisers in their pessimistic views of business, reserved support for environment and other regulation and strong anti-immigrant sentiment. (Pew Research Center, 2005)
The Social Conservative values are very deep-rooted on social issues ranging from gay marriage to abortion. They support a firm foreign policy and oppose government assistance for the needy, believing people need to make it on their own thorough hard work and perseverance. Social Conservatives are concerned about influence of immigrants on American society. They tend to be more middle-of-the-road on economic and domestic policies, expressing some doubt about business power and profits, and some support for government regulation to safeguard the environment. While Social Conservatives are not significantly more affluent than the rest of the nation, most articulate strong feelings of financial satisfaction and wellbeing. (Pew Research Center, 2005)
According to the Pew Research Center, Social Conservatives key beliefs compared to the general population are as follows:
Key Beliefs: | General Population | Social Conservatives |
Homosexuality is a way of life that should be discouraged by society | 44% | 65% |
The growing number of newcomers from other countries threatens traditional American customs and values | 40% | 68% |
Poor people today have it easy because they can get government benefits without doing anything in return | 34% | 68% |
Business corporations make too much profit | 54% | 66% |
After taking this questionnaire, I can see that there are many issues that I agree with that would point me towards being a Social Conservative Republican. I favor private social security accounts. I think they are not for everyone but their should be an option. I oppose Affirmative action. I think everyone should get a job or position because they have the right qualifications, not because they are a woman, black or Hispanic. I would not want to be hired just because I am a woman. I have no problem with allowing oil drilling in Alaska or off the Gulf Coast. We need to be less reliant on other countries for our oil. I think that creationism should be taught along with evolution in public schools. If they can teach the theory of evolution, why not teach other theories as well. I oppose Gay/Lesbian Marriage. I feel that a marriage is between a man and a woman, not between a man and a man or a woman and a woman. I have no problem with civil unions but do not call it marriage. I support the war in Iraq and think the troops should stay over there until the job is done. I support the patriot act. I think we need to do what we have to do to make sure our country is secure. Personally, I would rather give up a few liberties and be safe. However, there are many issues where I feel the opposite. I am somewhat against torturing enemy combatants. Our enemies would think nothing of torturing us but I think that we are better than they are. There are other ways to get the information without acting like them. I am totally opposed to Government run universal health care coverage. I have not yet heard a plan that I think would work effectively and Health Care Insurance companies are a billion dollar a year profit companies, I can’t see them giving up with out a big fight. I am pro-choice and feel that Roe v. Wade should not be overturned, but I do support not allowing minors abortions without parental consent. I am not a big fan of the Leave no Child behind act. This act was supposed to help children get a better education, but I feel that in reality what it does is push kids ahead without them having a proper foundation in the basics. We need better education programs in this country and schools need to be held accountable for what their students are or are not learning. So, I found it rather surprising that I would be a social conservative because I thought I was pretty down the middle in my political topography.
I am unsure if Social Conservatives or any of the political topology groups have a future for political success. Our opinions on ideology seem to change very quickly. I think currently that most people vote according to their party. Many independents / non-party affiliations end up voting the lesser of two evils. I really do not think that this will change anytime soon unless politicians start becoming more bi-partisan. According to the Pew Research Center “The extensive divisions within the two parties over fundamental political values are mirrored in disagreements over contemporary issues. Economic issues tend to divide Republican typology groups, while social issues split the Democrats. On many national security issues, especially the war in Iraq, internal partisan fissures are overshadowed by the vast gulf dividing Republicans and Democrats. However, tensions are evident among Democrats on some of these issues, especially in attitudes toward preemptive military action and the use of torture against suspected terrorists.” (Pew Research Center, 2005)
In my opinion, the major impact on political parties and elections is how our country is divided by party lines. Most of the major issues are divided right down the middle by party lines. There will be issues that will concern all of us at some point in time. Major issues such as Social Security reform and Healthcare reform need to be dealt with in the near future before things get out of hand. Another major issue we need to deal with is our economy and high gasoline prices. We always hear the campaign promises each politician makes. Each one promised this or that if they get elected. I cannot see how anyone can believe anything that politicians say. How many of them actually can keep those promises. Do they just say what they think we want to hear during an election year or do they truly believe that they can get our deeply divided senate and congress to agree on anything? Our Senate and Congress need to work together through bipartisanship not along party lines. I feel that they are the problem not the President. No matter who gets elected in November 2008, I do not think that it will change a thing. The parties will still be divided. Our legislature need to work together not against each other or against the President. They need to do what is right for the citizens of this nation. If both parties do not start working together using bi-partisanship then I cannot see how any important issues will be solved in a timely manner if solved at all.
References
Pew Research Center, (2005). Pew Research Center. Retrieved March 10, 2008, from Beyond Red or Blue: The 2005 Political Typology Web site:http://typology.people-press.org/typology/
Judicial Activisim
Roe v. Wade (1973)
Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life, and as a result their decisions shape the lives of people for a long time to come.
The primary responsibility of the Supreme Court is to discuss and settle all matters that warrant federal attention. As a result, The Supreme Court holds a influential power on public policy. To do this, the Court can govern in a manner that can be described as either judicial activism or judicial restraint. When establishing policy, the Court is said to be following a role of judicial activism. When simply reaffirming a policy, it is said to be following a role of judicial restraint. (Sidlow / Henchen, 2006)
Barrow’s Law Dictionary defines judicial activism as "a theory of behavior that advocates basing decision not on the judicial precedent but on achieving what the court perceives to be for the public welfare or what the court determines to be just and fair on the facts before it. Barrow’s Law Dictionary defines judicial restraint as “the theory of judicial behavior that advocates basing decisions on grounds that have been pervious defined by judicial precedent rather than on the basis of achieving some public good, which is viewed as the proper role of the legislature.” (Gifis, 2003 p. 277-278)
A "restrained" jurist, attempting to hold to the "original intentions" of constitutional provisions, must actively strike down statutes passed by a legislature, which repeatedly over-steps the bounds of those provisions. An "activist" jurist may passively accept expansive legislative action of a sort deemed consistent with general constitutional "values," even if lacking specific constitutional authorization or entering a "gray area" of constitutional prohibitions.
In my personal view, Roe v. Wade would fall under judicial activism. Roe v. Wade is one of the most controversial and politically significant cases in U.S. Supreme Court history. Its lesser-known companion case, Doe v. Bolton 410 U.S. 179 (1973), was decided at the same time. This case is about a pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws. These laws prohibit procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. Roe sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes. Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be endangered by the continuation of her pregnancy; and that she could not meet the expense of traveling to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they reduced her right of personal privacy protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue "on behalf of herself and all other women" similarly situated. (410 U.S. 113 Roe v. Wade)
This case also included a licensed physician (James Hubert Hallford). In his complaint he alleged that he had been arrested in the past for violations of the Texas abortion statutes and that two prosecutions were pending against him. Hallford described conditions of patients who came to him looking for abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a result, the statutes were vague and indeterminate, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor- patient relationship and his own right to practice medicine, rights he claimed were a guarantee by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. (410 U.S. 113 Roe v. Wade)
John and Mary Doe, a married couple, filed a companion lawsuit to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a "neural chemical" disorder; that her physician had "advised her to avoid pregnancy until such time as her condition has materially improved" that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue "on behalf of themselves and all couples similarly situated.” They separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, not ready for parenthood, and impairment of the wife's health. (410 U.S. 113 Roe v. Wade)
A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justifiable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and over broadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justifiable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross- appealed from the District Court's grant of declaratory relief to Roe and Hallford. (410 U.S. 113 Roe v. Wade)
“The Supreme Court heard arguments for Roe v. Wade in December 1971. After the justices debated the issues, Chief Justice Warren Burger recommended that the case be reargued, stating, “These cases…are not as simple for me as they appear to be for the [other justices].” The Court then ordered a second round of arguments, which it heard in October 1972. Finally, in January 1973 the Court decided 7-2 in favor of Roe. “ (MSN, Encarta)
Justice Harry A. Blackmun wrote the Court’s majority opinion, which is the written document that announces the Court’s decision and explains its reasoning. At the beginning of his opinion, Blackmun noted 'the sensitive and emotional nature of the abortion controversy' and the 'vigorous opposing views' held by many Americans. He also noted that 'one's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.’ However, having addressed these difficulties, Blackmun pointed out the need to resolve the issue of abortion based on an interpretation of the Constitution. (MSN, Encarta)
The Roe Court deemed abortion a fundamental right under the Constitution, in so doing it subjected all laws attempting to restrict it to the standard of strict scrutiny. Even though abortion is still considered a fundamental right, subsequent cases, notably Planned Parenthood of Southeastern Pennsylvania v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart have affected the legal standard. (410 U.S. 113 Roe v. Wade)
The ruling of the Roe Court, declined to accept the district court's Ninth Amendmentinterpretation, and in its place asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's notion of personal liberty and limitations upon state action, as this Court feels it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, “is broad enough to cover a woman's decision whether or not to terminate her pregnancy.” (410 U.S. 113 Roe v. Wade) Justice Douglas, in his concurring opinion from the companion case Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights.” (410 U.S. 179 (1973) Doe v. Bolton) Thus, the Roemajority rested its opinion squarely on the Constitution's due process clause.
In my personal opinion, I feel that the case was decided correctly. I think that a majority of the justices put aside there personal feelings and decided the matter based on their interpretation of the fourteenth amendment’s due process clause. I think that women should have a right to chose whether or not to terminate a pregnancy. I do however feel that there should be some restrictions applied to abortion. I feel that minors must have parental or guardian consent to obtain one. It is a medical procedure and only life threating medical procedures can be done on minors without parental consent. I also feel that abortions past the third month should only be done if necessary to preserve the heath of the mother. Another factor that might be taken into consideration is if the fetus is healthy. I think that the parents have a right to decide to terminate a pregnancy if the fetus is malformed or has little chance at survival due to genetic or medical conditions. The decision in Roe v. Wade has not had any personal impact on my life, but I feel that if it were overturned it would do more harm than good because it would be a defeat for all women to have the right to chose taken way and it would violate women’s right to privacy. I feel that abortions would still happen even if they were illegal but they would endanger women’s lives.
References
410 U.S. 179 (1973) Doe v. Bolton located on Cornell Law School Website athttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0179_ZS.html last accessed on April 3, 2008
Gifis, Steven (2003) Barron’s Law Dictionary Fifth Edition Hauppauge, New York. Barron’s Educational Series Inc.
Roe v. Wade located on MSN’s Encarta athttp://encarta.msn.com/encyclopedia_761595572/roe_v_wade.html last accessed on April 4, 2008
410 U.S. 113 Roe v. Wade located at Cornell Law School Website onhttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZS.html last accessed on April 2, 2008
Sidlow/Henchen (2006) Power, People and Politics: An Introduction to American Government, Mason, OH. Thomson Wadsworth
Claimant's Representative and Fees
Claimant’s Representative and Fees
A social security disability representative (attorney or non attorney) usually has a new client sign a fee agreement form, in addition to signing an ssa-1696 and several HIPPA-compliant medical release forms. Every fee agreement relationship that is entered into by a SSD or SSI disability claimant and their attorney or non-attorney disability representative must be approved by the Social Security Administration. (ssa.gov)
In our case the Judge has issued a fully favorable decision awarding McDivet disability. However, there is another 1696 form in McDivet’s file from Attorney Etheridge. In my initial interview with McDivet, I was told that I was the first representative that he has had in this case. However, McDivet now remembers that he did meet with Etheridge and did appoint her as his attorney, but dropped her a few weeks later because she did not contact him or done any work on his case.
So the big question is - Is this fee agreement binding? Yes, unfortunately it is. And even though not every fee agreement is the same, they all stipulate that, in the event a represented case is won, a claimant shall pay a specified fee (in this case 25% of the claimant's back benefits, or $5300.00. which ever is less). (ssa.gov)
My next big question would be - If a disability claimant discharges their representative and chooses a different representative, will the first fee agreement still be binding? Possible, depending on how much work the original representative did for the claimant. But, the claimant may dispute an attorney or non-attorney's right to receive a fee. A disability representative who has been replaced by a subsequent advocate may file a petition if they believe they are entitled to receive compensation for the work they've done on a claimant's case behalf prior to being discharged. (ssa.gov)
So, in this case we need to file a fee petition for the work we have done on McDivet’s case if we want to be paid our representatives fee. So will Etheridge. A fee petition is a written statement signed by a claimant's representative requesting the fee the representative wants to charge and collect for services he or she provided in pursuing the claimant's benefit rights in proceedings before the SSA.
A representative who elects to use the fee petition process generally files the petition after his or her services in the case have ended. Based on this petition, SSA will authorize a reasonable fee for the specific services provided. (Wolf & Proszek, 2003)
A fee petition differs from a fee agreement, for the reason that it requires the representative to prove entitlement to the fee. This proof includes time records and documentation of activities undertaken on behalf of the claimant. A fee petition is far more time consuming, but it enables the representative, if approved by the judge, to collect a larger fee, provided the time records and activities undertaken are justified. (Wolf & Proszek, 2003)
When considering a fee petition, the following factors are weighed by the ALJ: Dates services began and ended; Amount of the fee to be charged; Amount of expenses incurred; Description of the representative’s “special qualifications” that enabled him or her to give valuable help to the claimant; Complexity of the case; Level of skill and competence required; Amount of time actually spent; and Results obtained. (Wolf & Proszek, 2003)
A fee agreement is simply what it implies: It is an agreement, in writing, between the representative and the claimant, whereby the claimant agrees to pay a fee to the representative if he or she is successful; provided, however, that the fee agreement complies with the requirements of federal law. The law requires that a fee cannot exceed 25 percent of all back-due benefits, or $5,300, whichever is less. “Back-due benefits” are those monies paid from the date disability is found (the onset date) to the date of the decision. The fee is calculated on this amount, not monies accruing after the date of the decision. As long as the language of the fee agreement contains this limitation, the agreement will be approved. (Wolf & Proszek, 2003)
A fee agreement is a written statement signed by the claimant and his or her appointed representative specifying the fee the representative expects to charge and collect, and the claimant expects to pay, for services the representative provides in pursuing the claimant's benefit rights in proceedings before the SSA. In order for SSA to approve a fee agreement, the representative must submit it before the date of the first favorable determination or decision. SSA makes on a claim after the representative's appointment. If the representative does not submit a fee agreement by that date, SSA assumes the representative either will file a fee petition or waive a fee. (Wolf & Proszek, 2003)
If the representative submits a fee agreement before the date SSA makes a favorable decision, SSA will approve the fee agreement at the time of the favorable decision if the statutory conditions for approval are met and no exceptions to the fee agreement process apply. Once SSA approves the fee agreement, the fee specified in the agreement is the maximum fee the representative may charge and collect for all services in the claim. (Wolf & Proszek, 2003)
References
Social Security Administration Representative Web site located athttp://www.ssa.gov/representation/ last accessed on August 26, 2008
Wolfe, J.S. and Proszek, L.B. (2003). Social Security Disability and the Professional. Clifton Park, New York: Thomson Delmar Learning.
The Post Hearing Process – Request for Review – Appeals Council
The Appeals Council comprises the third step in the Social Security Disability system's appeal process. This step in the process is different from the other steps before it in that it's purpose is not to evaluate the merits of a case, but, rather, to determine if the Administrative Law Judge who denied the claim was in error.
The Appeals Council review process generally begins after an application for benefits has been denied at the initial, reconsideration, and hearing levels. If you disagree with the decision of the Administrative Law Judge, you may file a request for review with the Appeals Council.
The Appeals Council is made up of approximately 34 Administrative Appeals Judges and 27 Appeals Officers, who must review and sign each final action. The Council receives about 96,000 requests for review each year and has a current pending workload of 53,163 requests for review (September 2007). The Council must give each of these cases proper consideration. (ssa.gov)
Currently, the average processing time for a request for review is about 24 -30 months from the date the request is filed until the Appeals Council releases its final action. Any case pending more than 30 months will be considered for expedited processing. (ssa.gov)
Generally, you have 60 days after you receive the notice of our decision to ask for any type of appeal. In counting the 60 days, it is presumed that you receive the notice five days after we mail it unless you can show that you received it later. If you are unable to meet this deadline, explain your reasons for missing it in your request.
If you do not appeal on time, the Administrative Appeals Judge may dismiss your appeal. This means that you may not be eligible for the next step in the appeal process and that you may also lose your right to any further review.
Submit any additional evidence and/or comments you have with the request for review, if possible. Either the claimant or their representative should make requests for duplicate hearing tapes and exhibits only if you really need these items in your case.
You must have a good reason if you wait more than 60 days to request an appeal. If you file an appeal after the deadline, you must explain the reason you are late and request that Social Security Administration extend the time limit. The Appeals Council will consider your request and decide whether to extend the time limit.
The Appeals Council looks at all requests for review, but it may deny a request if it believes the hearing decision was correct. If the Appeals Council decides to review your case, it will either decide your case itself or return it to an Administrative Law Judge for further review. When the Appeals Council reviews your case it may consider any of the issues considered by the Administrative Law Judge, including those issues that were favorably decided in your case. You will receive a copy of the Appeals Council's final action on your case.
In most instances, an appeal sent to the Appeals Council will simply result in a letter mailed to a claimant that states "the request for review (of the administrative law judge's decision) has been denied". This, of course, translates as a denial.
However, there are many instances in which the Appeals Council may conduct a thorough review of the ALJ hearing proceedings and do one of the following:
1) Decides that the judge made a technical error or failed to consider medical evidence, resulting in the need for a remand.
or
2) Decides that the judge's decision was completely in error and overturns the decision---resulting in an approval.
A good attorney or representative should write a brief to the appeals council and point out the areas where the ALJ has made reversible mistakes. The arguments that can be made to get a decision reversed or remanded are numerous and differ from case to case. A good argument to make in your brief is that the Administrative Law Judges decision was not supported by substantial evidence. This basically means that the ALJ’s decision was not supported by the medical evidence in the file.
If you disagree with the Appeals Council's decision not to review your case or if your appeal was denied, you may then file a civil suit in the federal district court. You must commence this civil action by filing a complaint in the United States District Court for the judicial district in which you reside within sixty (60) days from the date you receive the Appeals Council's notice. The Social Security Administration assumes that you received the notice five (5) days after the date on it, unless you can show them that you received it later. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) shown at the top of your denial notice.
To file this civil action, the claimant must either represent themselves (Pro Se) or hire an attorney. A non-attorney representative cannot represent the claimant at this level or above.
References
Social Security Administration Representative Web site located at http://www.ssa.gov/representation/ last accessed on September 19, 2008
Social Security Administration Web Site – Hearings and appeals questions– located http://ssa-custhelp.ssa.gov/cgi-bin/ssa.cfg/php/enduser/std_alp.php?p_sid=ddZL3ZRi&p_lva=&p_li=&p_accessibility=0&p_redirect=&p_page=1&p_cv=2.135&p_pv=&p_prods=&p_cats=50,135&p_hidden_prods=&cat_lvl1=50&cat_lvl2=135&p_search_text=&srch_btn_submit= Searchttp://ssa-custhelp.ss last accessed on September 21, 2008
Wolfe, J.S. and Proszek, L.B. (2003). Social Security Disability and the Professional. Clifton Park, New York: Thomson Delmar Learning.
The Appeals Council review process generally begins after an application for benefits has been denied at the initial, reconsideration, and hearing levels. If you disagree with the decision of the Administrative Law Judge, you may file a request for review with the Appeals Council.
The Appeals Council is made up of approximately 34 Administrative Appeals Judges and 27 Appeals Officers, who must review and sign each final action. The Council receives about 96,000 requests for review each year and has a current pending workload of 53,163 requests for review (September 2007). The Council must give each of these cases proper consideration. (ssa.gov)
Currently, the average processing time for a request for review is about 24 -30 months from the date the request is filed until the Appeals Council releases its final action. Any case pending more than 30 months will be considered for expedited processing. (ssa.gov)
Generally, you have 60 days after you receive the notice of our decision to ask for any type of appeal. In counting the 60 days, it is presumed that you receive the notice five days after we mail it unless you can show that you received it later. If you are unable to meet this deadline, explain your reasons for missing it in your request.
If you do not appeal on time, the Administrative Appeals Judge may dismiss your appeal. This means that you may not be eligible for the next step in the appeal process and that you may also lose your right to any further review.
Submit any additional evidence and/or comments you have with the request for review, if possible. Either the claimant or their representative should make requests for duplicate hearing tapes and exhibits only if you really need these items in your case.
You must have a good reason if you wait more than 60 days to request an appeal. If you file an appeal after the deadline, you must explain the reason you are late and request that Social Security Administration extend the time limit. The Appeals Council will consider your request and decide whether to extend the time limit.
The Appeals Council looks at all requests for review, but it may deny a request if it believes the hearing decision was correct. If the Appeals Council decides to review your case, it will either decide your case itself or return it to an Administrative Law Judge for further review. When the Appeals Council reviews your case it may consider any of the issues considered by the Administrative Law Judge, including those issues that were favorably decided in your case. You will receive a copy of the Appeals Council's final action on your case.
In most instances, an appeal sent to the Appeals Council will simply result in a letter mailed to a claimant that states "the request for review (of the administrative law judge's decision) has been denied". This, of course, translates as a denial.
However, there are many instances in which the Appeals Council may conduct a thorough review of the ALJ hearing proceedings and do one of the following:
1) Decides that the judge made a technical error or failed to consider medical evidence, resulting in the need for a remand.
or
2) Decides that the judge's decision was completely in error and overturns the decision---resulting in an approval.
A good attorney or representative should write a brief to the appeals council and point out the areas where the ALJ has made reversible mistakes. The arguments that can be made to get a decision reversed or remanded are numerous and differ from case to case. A good argument to make in your brief is that the Administrative Law Judges decision was not supported by substantial evidence. This basically means that the ALJ’s decision was not supported by the medical evidence in the file.
If you disagree with the Appeals Council's decision not to review your case or if your appeal was denied, you may then file a civil suit in the federal district court. You must commence this civil action by filing a complaint in the United States District Court for the judicial district in which you reside within sixty (60) days from the date you receive the Appeals Council's notice. The Social Security Administration assumes that you received the notice five (5) days after the date on it, unless you can show them that you received it later. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) shown at the top of your denial notice.
To file this civil action, the claimant must either represent themselves (Pro Se) or hire an attorney. A non-attorney representative cannot represent the claimant at this level or above.
References
Social Security Administration Representative Web site located at http://www.ssa.gov/representation/ last accessed on September 19, 2008
Social Security Administration Web Site – Hearings and appeals questions– located http://ssa-custhelp.ssa.gov/cgi-bin/ssa.cfg/php/enduser/std_alp.php?p_sid=ddZL3ZRi&p_lva=&p_li=&p_accessibility=0&p_redirect=&p_page=1&p_cv=2.135&p_pv=&p_prods=&p_cats=50,135&p_hidden_prods=&cat_lvl1=50&cat_lvl2=135&p_search_text=&srch_btn_submit= Searchttp://ssa-custhelp.ss last accessed on September 21, 2008
Wolfe, J.S. and Proszek, L.B. (2003). Social Security Disability and the Professional. Clifton Park, New York: Thomson Delmar Learning.
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