GN 03940.038: Fee Agreement Process - FO and PC Procedures – Claimant Files Subsequent Application While Request for Review Is Pending at the Appeals Council

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~~Effective Dates: 01/10/2013 - Present~~
Effective Dates: 04/05/2018 - Present
TN 17 (03-05)
GN 03940.038 Fee Agreement Process - FO and PC Procedures – Claimant Files Subsequent Application While Request for Review Is Pending at the Appeals Council
A. Introduction
Effective July 28, 2011, with few exceptions, we will not accept a new disability application if a prior disability claim for the same title and benefit type is pending at any level of administrative review. See DI 51501.001 for those instances when we may accept a subsequent disability application. When our rules allow us to accept a new application (“subsequent application”) while a request for review of an Administrative Law Judge's (ALJ's) decision in an earlier application (“prior application”) is pending at the Appeals Council (AC), follow the policy and procedures in this section for cases in which the claimant is represented in connection with one or both applications and has entered into a fee agreement with one or more representatives in either the prior or subsequent application, or both.
In this section, the term “application” (rather than “claim”) applies to each of the two pending actions. This usage reflects the policy stated below that, for purposes of determining a fee for representation, SSA considers the two applications to be parts of a single claim process. Accordingly, SSA will apply the fee agreement rules as if there were a single application or claim (see GN 03940.038C.2. for policy on applying fee agreement rules).
Refer to GN 03104.370 for policy and procedures on processing a subsequent application filed while a request for review is pending at the AC on a prior application under the same or different title(s). DI 12045.027 and DI 20101.025 contain field office (FO) and Disability Determination Services (DDS) procedures on processing subsequent title II/XVI disability applications while a request for review is pending at the AC on a prior disability application.
B. Process - Subsequent Applications
1. Request for Review in the Prior Application Pending at the AC
When a claimant files a subsequent application while a request for review of a decision in a prior application is pending at the AC, the FO begins processing the subsequent application if there is a new issue (i.e., one that SSA has not already decided at some level of the administrative process), such as whether the claimant is disabled after the date of the hearing decision.
2. Subsequent Application Results in Favorable Initial or Reconsideration Determination
If the subsequent application results in a favorable initial or reconsideration determination, the FO or processing center (PC), as appropriate, effectuates the determination. In disability cases, after the DDS adjudicates a case and makes a favorable determination, the effectuating component (i.e., the PC or FO):
* faxes a copy of the disability determination form, SSA-831-U3, to the subsequent claim coordinator in the Office of Appellate Operations (OAO) (fax: 703-605-7101), within the Office of Hearings and Appeals (ODAR), before it effectuates payment;
* faxes a copy of the disability determination form, SSA-831-U3, to the subsequent claim coordinator in the Office of Appellate Operations (OAO) (fax: 703-605-7101), within the Office of Analytics, Review, and Oversight (OARO), before it effectuates payment;
* adds a Special Message to the Master Beneficiary Record (MBR) to identify the claim as a subsequent application with the prior application pending at the AC, with/without representative fee involvement;
* releases the award notice in the subsequent application; and
* routes the folder to OAO (or notifies OAO that there is an electronic folder). (DI 12045.027D. provides procedures after DDS adjudication of a subsequent application.)
If the AC, or an ALJ on remand from the AC, later issues a fully or partially favorable decision in the prior application, the AC or ALJ also may affirm or reopen the favorable determination in the subsequent application, depending on the circumstances in the case.
3. Subsequent Application Does Not Result in Favorable Initial or Reconsideration Determination
If the subsequent application does not result in a favorable initial or reconsideration determination, and the claimant requests a hearing on the unfavorable determination, the hearing office (HO) does not schedule a hearing or issue a decision until the AC acts on the request for review in the prior application. (Refer to DI 12045.025 and HALLEX I-5-3-17 II.A.)
C. Policy – Fee Agreements in Subsequent Application Cases
1. Cases This Policy Covers
The policy in this section applies to cases with the following profile:
* A request for review of an ALJ's decision in a prior application is before the AC (based on a request for review of the hearing decision or remand from the court) or the AC granted the request for review of the decision in the prior application and remanded the case to an ALJ for further action; or the AC reviewed the ALJ's decision on its own motion and the case is either pending before the AC or has been remanded to an ALJ;
* The claimant filed a subsequent application; and
* The claimant is represented in connection with one or both applications and has entered into a fee agreement with one or more representatives in the prior or subsequent application, or both.
2. Applying Fee Agreement Rules
When a case meets the profile in GN 03940.038C.1., SSA will apply all the fee agreement rules as if there were only one pending. (Refer to GN 03940.003 for fee agreement evaluation policy.)
* SSA will consider both applications to constitute one claim for purposes of approving or disapproving a fee agreement.
* When deciding whether any exceptions to the fee agreement process apply, SSA will consider any representative appointed in connection with the prior or subsequent application to have been an appointed representative in the claim. Accordingly, if considering all representatives appointed in the prior and the subsequent applications, one of the “multiple representatives” exceptions to the fee agreement process applies (see GN 03940.003B.), SSA may not use the fee agreement process to authorize fees to any representative in the claim. In this situation, all representatives, including any representative whose fee agreement was approved and subsequently disapproved, must file a fee petition to obtain authorization to charge and collect a fee.
* SSA will approve no more than one fee agreement in the one claim and will authorize a maximum fee not to exceed the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap as indicated in GN 03940.003A.3. or a lower fee cap specified in the fee agreement) for representation services in both applications, (unless the fee is increased on administrative review).
* A representative who is dissatisfied with the fee authorized in connection with a subsequent or prior application case may request administrative review. In such a case, SSA will find good cause for the late filing of a request for administrative review when either of the following situations exists:
* Non-Court Case
* SSA authorized an amount equal to the statutory cap (or a lesser cap specified in the agreement) in connection with the subsequent application;
* SSA issues a favorable decision on the prior application that yields additional past-due benefits; and
* a party to the agreement requests administrative review within 15 days of receiving the award notice SSA issues when implementing the decision on the prior application.
* Court Case
* SSA authorized an amount less than or equal to the statutory cap (or a lesser cap specified in the agreement) in connection with the subsequent application;
* a Federal court issues a favorable decision on the prior application that yields additional past-due benefits; and
* a party to the agreement requests administrative review within 15 days of receiving the award notice SSA issues when implementing the decision on the prior application.
NOTE 1: A representative has the right to request administrative review in connection with any initial fee authorization. When a representative is authorized a fee amount that is less than the statutory cap (or a lower cap specified in the fee agreement) because 25 percent of the claimant's (and any auxiliary beneficiary's(ies')) past-due benefits is less than the statutory or specified cap, and SSA issues a more favorable decision at a later date, that could yield an additional fee to the representative, the representative has another opportunity to file a timely request for administrative review of the authorized fee amount.
NOTE 2: The decision maker who issues the second favorable administrative action (i.e., the decision on the prior application) will process the request for administrative review of the authorized fee unless the only fee agreement submitted was in connection with the subsequent application. In that situation, the fee agreement decision maker for the subsequent application is the reviewing official.
NOTE 3: When a Federal court issues a decision on the prior application that is more favorable than the decision SSA issued on the subsequent application and, after the court issues its decision, the representative requests administrative review of the fee SSA authorized based on the fee agreement approved in connection with the subsequent application, the Attorney Fee Officer, ODAR, is the reviewer.
NOTE 3: When a Federal court issues a decision on the prior application that is more favorable than the decision SSA issued on the subsequent application and, after the court issues its decision, the representative requests administrative review of the fee SSA authorized based on the fee agreement approved in connection with the subsequent application, the Attorney Fee Officer, OHO, is the reviewer.
* If the fee agreement includes a provision that the representative is unwilling to accept the statutory cap if the claimant files a subsequent application, the decision maker will disapprove the fee agreement.
* If SSA disapproves a fee agreement, any representative appointed in the prior or subsequent application, who wishes to charge and collect a fee, must file a fee petition.
3. Documenting the Fee Agreement in the Subsequent Application
SSA will accept a fee agreement filed with the subsequent application. SSA will accept a photocopy of a fee agreement, including a photocopy of a fee agreement filed in the prior application (see GN 03940.001C.).
4. FO or PC Decision Maker Responsibilities Regarding Fee Agreement Approval or Disapproval
The FO or PC decision maker will approve or disapprove a fee agreement when SSA makes a favorable initial or reconsideration determination on the subsequent application, if the fee agreement was filed during the subsequent application process. The decision maker will approve or disapprove the fee agreement based on whether it:
* does or does not meet the statutory requirements (refer to GN 03940.003A.); and/or
* is or is not excepted from the fee agreement process (refer to GN 03940.003B.).
In deciding whether any exceptions to the fee agreement process apply, SSA will consider any representative appointed in the prior and/or subsequent application to be an appointed representative in the claim. If the claimant has dismissed a representative or a representative has withdrawn from serving as the claimant's representative, the FO or PC decision maker will document the file to reflect this and to show whether the former representative waives the fee or intends to request a fee, if that is known.
If the fee agreement has a two-tiered provision (i.e., the fee agreement applies only to services through a specified level of the administrative appeals process), the FO or PC decision maker will approve or disapprove the agreement based on the provision that applies to the administrative level at which SSA issues the favorable determination on the subsequent application. The FO or PC decision maker will not consider the level at which the prior application is pending in deciding whether to approve or disapprove the agreement. Refer to GN 03940.005 for two-tier fee agreement policy.
The FO or PC decision maker will take no action on a fee agreement filed only in connection with the prior application.
~~5. ODAR Decision Maker Responsibilities Regarding Fee Agreement Approval or Disapproval~~
5. OHO Decision Maker Responsibilities Regarding Fee Agreement Approval or Disapproval
~~a. ODAR Decision Maker Issues Favorable Decision in Prior Application~~
a. OHO Decision Maker Issues Favorable Decision in Prior Application
Because SSA considers the prior and subsequent applications to be one claim for purposes of acting on a fee agreement and authorizing a fee for representation services under the fee agreement process, SSA will approve no more than one fee agreement. Therefore, SSA must consider any appointment(s) of representative and any fee agreement(s) filed in the prior and subsequent applications to arrive at one overall fee agreement action.
If an ODAR decision maker, as defined in HALLEX I-1-2-13, issues a favorable decision in a prior application after SSA has issued a favorable determination in a subsequent application, the ODAR decision maker who issues the decision in the prior application is responsible for ensuring that the correct action is taken on the fee agreement(s) in the claim (i.e., both the prior and subsequent applications).
If an OHO decision maker, as defined in HALLEX I-1-2-13, issues a favorable decision in a prior application after SSA has issued a favorable determination in a subsequent application, the OHO decision maker who issues the decision in the prior application is responsible for ensuring that the correct action is taken on the fee agreement(s) in the claim (i.e., both the prior and subsequent applications).
~~In these situations, the ODAR decision maker will:~~
In these situations, the OHO decision maker will:
* Consolidate representation information and any fee agreement(s) the parties filed in the prior and subsequent applications.
* Determine whether he or she must act on any fee agreement filed in the prior application, considering the determination in the subsequent application and the approval or disapproval of a fee agreement filed in the subsequent application (if applicable).
* Rescind any approval of the fee agreement SSA issued in connection with the subsequent application if the ODAR decision maker determines that the approval action was incorrect.
* Rescind any approval of the fee agreement SSA issued in connection with the subsequent application if the OHO decision maker determines that the approval action was incorrect.
* If necessary, approve or disapprove the fee agreement(s).
~~b. ODAR Decision Maker Does Not Issue a Favorable Decision in Prior Application~~
b. OHO Decision Maker Does Not Issue a Favorable Decision in Prior Application
If an ODAR decision maker issues an unfavorable decision in a prior application, or does not issue a decision, the ODAR decision maker will not act on a fee agreement or review any action the decision maker in the subsequent application took on a fee agreement.
If an OHO decision maker issues an unfavorable decision in a prior application, or does not issue a decision, the OHO decision maker will not act on a fee agreement or review any action the decision maker in the subsequent application took on a fee agreement.
6. Jurisdiction to Authorize Fees Under the Fee Petition Process If Fee Agreement Disapproved
a. Representative Appointed in Prior Application
If, under the policy in this section, SSA disapproves a fee agreement, initially or after rescinding approval of the fee agreement, and the representative(s) appointed in connection with only the prior application or the prior and subsequent applications, later requests a fee through the fee petition process, the ODAR component that took the last action on the prior application will evaluate any fee petition(s) and authorize a fee(s). If the FO or PC decision maker disapproves the fee agreement in connection with the subsequent application while the prior application is pending at the AC, the FO or PC will advise the representative to file the fee petition with the Attorney Fee Branch (ODAR, 5107 Leesburg Pike, Suite 805, Falls Church, VA 22041-3255) when he or she has completed the services he or she provided in pursuing the claimant's benefit rights in proceedings before SSA
If, under the policy in this section, SSA disapproves a fee agreement, initially or after rescinding approval of the fee agreement, and the representative(s) appointed in connection with only the prior application or the prior and subsequent applications, later requests a fee through the fee petition process, the OHO component that took the last action on the prior application will evaluate any fee petition(s) and authorize a fee(s). If the FO or PC decision maker disapproves the fee agreement in connection with the subsequent application while the prior application is pending at the AC, the FO or PC will advise the representative to file the fee petition with the Attorney Fee Branch (OARO, 5107 Leesburg Pike, Suite 805, Falls Church, VA 22041-3255) when he or she has completed the services he or she provided in pursuing the claimant's benefit rights in proceedings before SSA
b. Representative Appointed in Only Subsequent Application
If the FO or PC disapproved the fee agreement, or the FO's or PC's approval of a fee agreement was rescinded, and the representative was appointed only in the subsequent application, the appropriate reviewer in the PC will evaluate that representative's fee petition and authorize that representative's fee. The FO and PC will follow the policy in GN 03930.015A. in advising the representative where to file the fee petition
D. Procedure - FO - Documenting the Appointment of a Representative and a Fee Agreement in Subsequent Application Case
To determine whether the claimant is represented in the prior application when a claimant files a subsequent application (see GN 03104.370):
* Ask the claimant to list all current and former representatives and to state the status of each (i.e., withdrawn, dismissed or current).
* Check the MCS screens.
* Check the representative information on the MBR, the QRID established in the prior application, and/or the AUTH segment of the SSID.
* Query ODAR's Case Processing and Management System (CPMS). To access CPMS, use the SSA Web Index Page desktop icon or go to http://cpms/ba.ssa.gov/cpms.
* Query OHO's Case Processing and Management System (CPMS). To access CPMS, use the SSA Web Index Page desktop icon or go to http://cpms/ba.ssa.gov/cpms.
* Review the information regarding representation on the Form HA-520-U5 (Request for Review of Hearing Decision/Order) if the claimant is filing the subsequent application simultaneously with a request for review of the ALJ's decision or order of dismissal in the prior application.
1. Claimant Not Represented in Prior Application
If the claimant is not represented in the prior application and does not indicate that he or she is represented in the subsequent application, process the subsequent application without further documentation regarding representation.
2. Claimant Is Represented in Prior Application
If the claimant is represented in the prior application, ask the claimant the following questions:
* Does the claimant want that representative to represent him or her in the subsequent application?
* If yes, obtain a new Form SSA-1696-U4 (Appointment of Representative) or equivalent statement, or a copy of the appointment of representative filed in the prior application, annotated by the claimant or representative, to indicate that the representative also represents the claimant in the subsequent application. Also answer question in GN 03940.038D.2.c.
* If no, ask:
* Does the claimant want another person to represent him or her in the subsequent application?
* If yes, obtain a new Form SSA-1696-U4 for that representative and send a Form SSA-1697 (Notice to Representative of Claimant Before the Social Security Administration) to the representative. Also answer question in GN 03940.038D.2.c.
* If no, document the file indicating that the claimant chose not to be represented in the subsequent application.
* If the claimant is represented, will the fee agreement process be used?
* If yes and the claimant has a new representative, accept a new fee agreement.
* If yes and the claimant has the same representative as he or she appointed in connection with the prior application, accept a new fee agreement or a copy of any fee agreement filed in the prior application annotated by the claimant or representative to indicate that the fee agreement applies in the subsequent application.
* If no or no known fee agreement, document the file that there is no fee agreement.
E. Procedure – FO or PC Decision Maker – Approving or Disapproving a Fee Agreement in the Subsequent Application
Approve or disapprove a fee agreement when making a fully or partially favorable determination in the subsequent application. In doing so, consider:
* the statutory criteria listed in GN 03940.003A.; and
* the exceptions to the fee agreement process listed in GN 03940.003B.
When deciding whether any exceptions apply, consider all appointments of representative in both the subsequent application and the prior application pending with the AC. Disapprove the agreement if any exception applies.
If you disapprove the fee agreement based on one of the multiple representative situations (GN 03940.003B.1. and GN 03940.003B.2.) or because a representative withdrew or was discharged (GN 03940.003B.3.), select the rationale for disapproval on the special determination Form SSA-553, GN 03940.090 Exhibit 2, from those listed under Prior/Subsequent Applications with Multiple Representatives. The three options begin.:
“Considering the appointments of representative in the claimant's applications dated [Date of prior application] and [Date of subsequent application],” and conclude with:
* the claimant appointed more than one representative from a firm, partnership, or legal corporation, all did not sign a single fee agreement, and the non-signing representative(s) did not waive charging or collecting a fee.
or
* the claimant appointed representatives who are not members of a single firm, partnership, or legal corporation, and the non-signing representative(s) did not waive charging or collecting a fee.
or
* the claimant discharged a representative, or a representative withdrew from the case before SSA decided the claim, and the representative did not waive charging or collecting a fee.
For a disability application with a paper file, manually annotate the subsequent claim flag (see DI 12045.027 Exhibit 2) or the claim file route slip with the action taken on the fee agreement (i.e. “Fee Agreement Approved” or “Fee Agreement Disapproved”). The Electronic Disability Collect System (EDCS) has a “representative involved” electronic flag.
NOTE: If an ODAR decision maker issues a favorable decision in a prior application after SSA has issued a favorable determination in a subsequent application, the ODAR decision maker who issues the decision in the prior application is responsible for ensuring that the correct action is taken on the fee agreement(s) in the claim (both the prior and the subsequent applications). Refer to HALLEX I-1-2-16(C.5.).
NOTE: If an OHO decision maker issues a favorable decision in a prior application after SSA has issued a favorable determination in a subsequent application, the OHO decision maker who issues the decision in the prior application is responsible for ensuring that the correct action is taken on the fee agreement(s) in the claim (both the prior and the subsequent applications). Refer to HALLEX I-1-2-16(C.5.).
F. Procedure – FO and PC - Authorizing a Fee Based on an Approved Fee Agreement in the Subsequent Application
1. Past-Due Benefits
Follow existing guidelines in GN 03920.030 to calculate title II past-due benefits, and in GN 03920.031 to calculate title XVI past-due benefits.
2. Fee Agreement Approved in Subsequent Application
Follow the existing procedures for authorizing a fee when the decision maker approved the fee agreement submitted in connection with the subsequent application (see GN 03940.000).
~~3. ODAR Does Not Reopen Determination in Subsequent Application~~
3. OHO Does Not Reopen Determination in Subsequent Application
Consider the decision on the subsequent application a partially favorable decision for purposes of calculating the additional past-due benefits resulting from the decision on the prior application if:
* the decision maker approved a fee agreement;
* the claimant appointed the same representative in both the prior and subsequent applications; and
* the favorable AC or ALJ decision in the prior application results in an additional period of entitlement and does not disturb the period of entitlement established in the subsequent application.
G. Procedure – PC - Authorizing a Fee Based on an Approved Fee Agreement in Prior Application
If the AC or ALJ concludes that the favorable determination on the subsequent application was incorrect and reopens that determination, the AC or ALJ's action vacates the fee agreement approval issued in connection with the subsequent application and approves or disapproves the fee agreement. If the AC or ALJ approves the fee agreement:
* recalculate the past-due benefits for the entire period of entitlement under either or both titles in accordance with the findings in the decision; and
* authorize the fee.
Refer to GN 03920.030B.2. and GN 03920.031 for policy on calculating title II and title XVI past-due benefits, respectively.
H. Procedure – PC - Incorrectly Approved Fee Agreement
The simultaneous processing of two applications and the need to coordinate the actions on a fee agreement may result in a decision maker incorrectly approving a fee agreement filed in connection with the subsequent or prior application. When that occurs, refer any incorrect fee agreement approval from an ODAR decision maker, as defined in GN 03940.002C. and GN 03940.002.D., to the ODAR reviewing official, as defined in GN 03960.005B.1. for rescission under the procedures in GN 03940.025C.4.
The simultaneous processing of two applications and the need to coordinate the actions on a fee agreement may result in a decision maker incorrectly approving a fee agreement filed in connection with the subsequent or prior application. When that occurs, refer any incorrect fee agreement approval from an OHO decision maker, as defined in GN 03940.002C. and GN 03940.002.D., to the OHO reviewing official, as defined in GN 03960.005B.1. for rescission under the procedures in GN 03940.025C.4.
EXCEPTION: Do not refer an ODAR decision maker's incorrect approval if the approval is merely duplicative (i.e., the decision maker in the subsequent application already approved a fee agreement between the claimant and the same representative(s) and the ODAR decision maker was not required to act on the fee agreement under the policy in GN 03940.038C.2.). In such cases, authorize any additional fees, if applicable, under the instructions in GN 03940.038F.3.
EXCEPTION: Do not refer an OHO decision maker's incorrect approval if the approval is merely duplicative (i.e., the decision maker in the subsequent application already approved a fee agreement between the claimant and the same representative(s) and the OHO decision maker was not required to act on the fee agreement under the policy in GN 03940.038C.2.). In such cases, authorize any additional fees, if applicable, under the instructions in GN 03940.038F.3.
NOTE: When an ODAR decision maker determines that the PC or FO incorrectly approved a fee agreement submitted in connection with the subsequent application, the ODAR decision maker will rescind that approval.
NOTE: When an OHO decision maker determines that the PC or FO incorrectly approved a fee agreement submitted in connection with the subsequent application, the OHO decision maker will rescind that approval.
I. Examples
~~The following examples of ODAR decision maker action on a fee agreement illustrate the application of some of the policy statements made in this section:~~
The following examples of OHO decision maker action on a fee agreement illustrate the application of some of the policy statements made in this section:
1. Fee Agreement Approved in Subsequent Application - Same Representative Filed Fee Agreement in Prior Application - Determination in Subsequent Application Not Reopened
* In filing her subsequent application in July 2009, the claimant indicates that she is represented by attorney Kirk of the firm of Kirk, Spock and McCoy, P.C., in a request for review pending before the AC. The claimant and Mr. Kirk entered into a fee agreement on July 1, 2009, providing that:
* the fee will not exceed the lesser of 25 percent of past-due benefits or $6,000 if SSA favorably decides the claim(s) at or before the level of the first ALJ hearing decision in the case; and
* the fee will equal 25 percent of past-due benefits if the claim progresses beyond that level of the administrative appeals process.
* The FO adjudicator determines that the claimant also wishes Mr. Kirk to represent her in her subsequent application, and obtains copies of the appointment and fee agreement, annotated to indicate that Mr. Kirk also represents the claimant in the subsequent application.
* When making a favorable initial determination on the subsequent application, the FO adjudicator approves the fee agreement between the claimant and Mr. Kirk. (At the initial determination level, the first “tier” in the fee agreement applies.)
* The PC calculates that the past-due benefits resulting from the favorable decision in the subsequent application were $12,000. Based on the approved fee agreement, the PC releases a notice authorizing a fee of $3,000 to Mr. Kirk, and directly pays him that amount less the applicable user fee.
* In the prior application pending at the AC, the claimant also had appointed Mr. Kirk, and had entered into a fee agreement on April 2, 2007, with the same terms as those in the agreement approved in the subsequent application except that the specified dollar amount of the fee cap was then $5,300.
* The AC issues a favorable decision in the prior application, affirming the findings in the determination on the subsequent application and further finding an earlier onset date.
* The Administrative Appeals Judge (AAJ) reviews the appointments of representative and the fee agreement approval in the subsequent application.
* Because the fee agreement with Mr. Kirk has already been approved, and there is no other appointed representative in the claim, the AAJ takes no action on the fee agreement.
NOTE: The AAJ does not evaluate the fee agreement under the second “tier” because SSA reached a favorable determination under the first.
* The PC calculates that the additional past-due benefits resulting from the AC's favorable decision are $20,000. Based on the fee agreement approved in the subsequent application, the PC sends notice authorizing an additional fee of $3,000 ($6,000 less the $3,000 previously authorized), and directly pays Mr. Kirk that amount (less the applicable user fee).
* If any party requests administrative review of the amount of the fee based on the notice released in the prior application, the Attorney Fee Officer, as the reviewing official, will consider the amount of fees authorized in both the prior and subsequent applications in determining an overall fee for services throughout the entire claims process.
2. Fee Agreement Approved in Subsequent Application - Different Representative Was Appointed In Prior Application - Determination in Subsequent Application Not Reopened
* In the subsequent application, the claimant appoints attorney Kirk of the firm of Kirk, Spock and McCoy, P.C. The claimant and Mr. Kirk entered into a fee agreement on July 1, 2009, specifying a fee not to exceed the lesser of 25 percent of past-due benefits or $6,000.
* The FO approves the fee agreement between the claimant and Mr. Kirk when making a favorable determination on the subsequent application.
* The PC calculates that the title II past-due benefits resulting from the favorable determination in the subsequent application are $18,000. Based on the approved fee agreement, the PC releases a notice authorizing a fee of $4,500 to Mr. Kirk, and directly pays him that amount less the applicable user fee.
* In the prior application on review at the AC, the claimant had appointed Mr. Kirk, and had also appointed attorney Spock of the same firm. The claimant and Messrs. Kirk and Spock had entered into a fee agreement on April 1, 2007, providing that:
* the fee will not exceed the lesser of 25 percent of past-due benefits or $5,300 if SSA favorably decides the claim(s) at or before the level of the first ALJ hearing decision in the case; and
* the fee will be equal to 25 percent of past-due benefits if the claim progresses beyond that level of the administrative appeals process.
Neither the previous appointment nor the previous fee agreement had been made available to the FO.
* The AC issues a favorable decision in the prior application, affirming the findings in the determination on the subsequent application and further finding an earlier onset date.
* The AAJ reviews the appointments of representative in both the prior and subsequent applications and the fee agreement approval in the subsequent application. The AAJ notes that an exception applies because the claimant appointed an attorney (Mr. Spock) who did not sign the fee agreement in the subsequent application.
* The AAJ:
* Issues an order to Mr. Kirk rescinding the fee agreement approval the FO issued (in connection with the subsequent application and the fee agreement dated July 1, 2009) and disapproving that fee agreement. The basis for the disapproval is that an exception applies: the claimant appointed more than one representative from a law firm; all representatives did not sign a single fee agreement; and the representative who did not sign the fee agreement, did not waive charging and collecting a fee.
* Issues an order to Messrs. Kirk and Spock disapproving the fee agreement submitted in connection with the prior application. Because the second “tier” of the agreement provides for a fee that exceeds the statutory limits at the level of AC review, the first basis for the disapproval is that it specifies a fee that is not limited to the lesser of 25 percent of past-due benefits or $6,000. The second basis is that an exception applies: the claimant appointed more than one representative from a law firm; all representatives did not sign a single fee agreement; and the representative who did not sign the fee agreement, did not waive charging and collecting a fee.
* The AAJ's orders notify Messrs. Kirk and Spock that they must send their fee petitions to the Attorney Fee Branch, OAO, ODAR, in order to charge and collect fees.
* The AAJ's orders notify Messrs. Kirk and Spock that they must send their fee petitions to the Attorney Fee Branch, OAO, OHO, in order to charge and collect fees.
* The PC notifies Mr. Kirk that the fee based on the incorrectly approved fee agreement is no longer the authorized fee. However, Mr. Kirk's fee petition may include services performed in connection with both applications.
* The PC calculates that the additional title II past-due benefits resulting from the AC's favorable decision are $30,000. The PC recalculates the past-due benefits under the rules for “Partially Favorable Decisions” in GN 03920.030B. and withholds the appropriate amount ($7,500).
* After Mr. Kirk and Mr. Spock file fee petitions, ODAR's Attorney Fee Branch authorizes reasonable fees based on the representatives' services.
* After Mr. Kirk and Mr. Spock file fee petitions, OHO's Attorney Fee Branch authorizes reasonable fees based on the representatives' services.
* Based on the authorizations, the PC determines:
* whether Mr. Kirk is owed any additional direct payment from withheld title II past-due benefits, considering the previous authorization to him of $4,500, or whether he owes money back (i.e., the authorization on the fee petition was for less than $4,500), and
* how much, if any, to pay to Mr. Spock from withheld title II past-due benefits.
NOTE: If Mr. Kirk was initially authorized and received by direct payment a higher fee than the Attorney Fee Branch later authorizes based on the fee petition, the PC will request Mr. Kirk to refund the excess fee amount. The PC will not obtain a photocopy of the direct payment check, unless Mr. Kirk disputes the fact that he received the fee payment. If the PC released to the claimant the difference between the fee authorized to Mr. Kirk and 25 percent of the claimant's past-due benefits based on the determination on the subsequent application, and SSA is no longer withholding sufficient funds to make direct payment to Mr. Spock, refer to GN 03920.055, Benefits Not Available to Certify Direct Payment to a Representative.

POMS Reference

GN 03940.038: Fee Agreement Process - FO and PC Procedures – Claimant Files Subsequent Application While Request for Review Is Pending at the Appeals Council