TN 8 (02-05)

A. Policy - Title XVI

When evaluating the fee petition to determine a reasonable fee for representation, consider:

• the purpose of the supplemental security income program (i.e., to assure a minimum level of income for recipients who otherwise do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level), and

• the factors listed in GN 03930.105B.1. through GN 03930.105B.7.

NOTE: The fee reviewer in the processing center determines the fee for services when the claim, including a title XVI only claim, was decided at the initial or reconsideration level. The Office of Hearings Operations (OHO) decision maker determines the fee for cases decided by OHO.

B. Policy - Title II

When evaluating the fee petition to determine a reasonable fee for representation, consider:

• the purpose of the title II program (i.e., to provide a measure of economic security for program beneficiaries), and

• the factors listed in GN 03930.105B.1. through GN 03930.105B.7.

1. Services provided

Consider the type and extent of services the representative provided.

a. Questions to consider

Consider questions like the following, to assess the type and extent of services:

• Did the representative research relevant law or rulings?

• Did the representative search old records to obtain the evidence?

• Did the representative arrange a medical examination?

• Did the representative submit medical or lay evidence of disability or other factors of entitlement?

• Did the representative often contact SSA about the status of the claim?

b. Recognize SSA does not set standard for each type of service

Recognize that SSA does not set a standard value for each type of service because of the variety of activities in which a representative may engage and because the same activity may be more demanding in one situation than another. Recognize too that even routine services (e.g., conferring with the claimant or researching the law) can be necessary and of value.

c. Consider effort made by representative

Consider the effort the representative made in providing the service, and the relevancy.

EXAMPLES:

• A representative submitted a copy of a hospital report that served as the primary basis for the Disability Determination Services (DDS) finding the claimant disabled.

• A representative submitted a copy of medical evidence he/she had used successfully in a recent worker’s compensation claim to support the claim for a period of disability and disability insurance benefits. The representative provided SSA with readily available evidence we may not have had. However, the submission of new medical evidence relating to the period before insured status expired would have been a far more valuable service.

d. Consider quality of services provided by representative

Consider the quality of the services the representative provided (e.g., the claimant lost benefits because the representative delayed mailing the application).

NOTE: An attorney representative may assist the claimant on legal matters other than proceedings before SSA. Identify and exclude any non-SSA related activities in evaluating the fee. See GN 03930.105B.4.b.

2. Complexity of the case

Evaluate the complexity of the case based on the work or documentation needed to resolve the issues. Do not underestimate complexity because of your knowledge or experience as an SSA employee.

EXAMPLE: A representative contacted numerous sources for information used to establish the claimant's date of birth, a task of some complexity. Although you would have used the priority lists of convincing evidence in GN 00302.115, understand that SSA created those guidelines because of problems often encountered in developing evidence of age.

3. Level of skill and competence required

Consider the issues involved and the investigation the representative did to resolve them. Do not base your assessment on what you would have done when following existing instructions or on what the representative could have done theoretically, given his/her expertise.

EXAMPLE: The representative submitted a copy of the evidence he used in the claimant's worker’s compensation claim. A representative in another case scheduled a medical examination and submitted the results for evaluation, along with other new evidence showing the claimant's condition. The representative's actions in the second case demonstrate greater skill and competence.

4. Amount of time spent

a. Time to credit

Credit the time allegedly spent on services unless the time seems exaggerated (e.g., one hour to arrange a medical appointment) or inordinate (e.g., 10 hours of research when you know the representative regularly handles social security claims and the claim does not involve an unusual issue or impairment). Contact the representative for an explanation (as in GN 03930.100C.4.) of time that is questionable.

b. Time to exclude

Exclude time claimed for:

• preparing the fee petition or any other activities related to charging or collecting a fee, such as inquiries about the status of a fee petition; and

• services not provided in proceedings before SSA (see GN 03920.010D. and GN 03920.010F.2.).

5. Results achieved

Consider the results achieved along with all of the other factors.

Do not permit this factor to completely override the others.

EXAMPLE: In two separate claims, a representative provided the same services (in terms of extent and type, complexity, skill, etc.). SSA made a favorable determination on one claim and an unfavorable determination on the other. You would not disregard the other factors and authorize the fee amount the representative requests in the first, but authorize no fee in the second, simply because of the outcome.

Do not authorize the fee primarily on the basis of the amount of benefits awarded (or lack thereof); the amount payable is unrelated to the extent or quality of services the representative provided.

EXAMPLE: A thoughtful assessment of the claimant's description of symptoms prompted his representative to develop evidence for a medical condition which the field office (FO) and DDS had overlooked. This established the claimant's entitlement to disability insurance benefits. When evaluating, you credit the favorable results the representative achieved. You also credit the representative's demonstrated skill and competence in a case that was complicated by the claimant's stressing symptoms of a nondisabling medical condition and SSA's failure to recognize the significance of his other symptoms.

6. Level(s) in the administrative process

Consider the administrative process level(s):

• at which the representation began, and

• to which the representative took the claim.

Apply your knowledge of the activities each level entails. Do not assume that the representative merely filed a form.

EXAMPLE: If the claimant appointed the representative after receiving notice of the initial determination and SSA favorably decided the claim on reconsideration:

• Assume that the representative interviewed the claimant about what had happened thus far, researched the law and eligibility factors, and determined whether new evidence was available.

• Do not assume that the representative prepared for a personal appearance.

7. Amount of fee requested

Consider the amount the representative requested and apply all of the factors listed above. If the fee the representative requested is reasonable for the services he/she provided, authorize a fee in the amount requested. You may authorize a fee in a greater or lesser amount than that requested, provided the authorized fee is reasonable.

C. Procedure - concurrent Titles II and XVI

When evaluating the fee petition to determine a reasonable fee for representation in concurrent titles II and XVI cases that involved a common substantive issue, consider:

• the purposes of the programs, in GN 03930.105A.;

• the factors listed in GN 03930.105B.1. through GN 03930.105B.7.; and

• whether the other criteria in GN 03930.010B. are met. If those criteria are met and SSA is withholding for possible direct payment of a representative's fee, decide whether any services were so unique to the supplemental security income program that you must designate a portion of the fee amount as attributable to title XVI exclusively.

D. Procedure - completing the SSA-1178

Complete the Form SSA-1178 (Evaluation of Fee Petition for Representation). Use this form to show the amount of the fee you find reasonable, and to explain and document your rationale.

1. Fee $10,000 or less

If the amount of the fee you believe is reasonable is $10,000 or less, follow GN 03930.110 to notify the representative and the claimant of the fee.

2. Fee would exceed $10,000

If the amount of the fee (or total of fees) you believe is reasonable exceeds $10,000, take the following actions.

1. Send the recommendation you prepared on the SSA-1178 and the claim file to the Attorney Fee Branch (AFB):

   Social Security Administration
   Office of Hearings and Appeals
   ATTN: Attorney Fee Branch, Suite 805
   5107 Leesburg Pike
   Falls Church, VA 22041-3255

   NOTE: The AFB will authorize the fee and prepare and distribute Form SSA-1560A-U4.

2. If SSA is withholding for direct payment of a representative's fee, the PC diaries the case for 45 days. See GN 03920.015C. if the PC has not received the fee authorization when the diary matures.