20 CFR 404.1720(b), 404.1725(b), 416.1520(b) and (c), and 416.1525(b)
Where an attorney's representation of a claimant in concurrent claims under titles II and XVI of the Social Security Act (the Act) leads to favorable decisions in both claims, held, the attorney need submit only one petition for approval of a fee for services rendered in both claims, and the Social Security Administration (SSA) need determine only one fee for the combined services in both claims. Further held, the authorized fee can be paid directly to the attorney out of the claimant's past-due title II benefits, except for that portion of the fee (if any) attributable to services that were rendered exclusively in connection with the title XVI claim.
The claimant, C, applied concurrently for disability insurance benefits and for supplemental security income (SSI) benefits as a disabled individual. Following SSA's denial of those claims, C appointed an attorney, A, who filed a request for reconsideration on C's behalf. Upon reconsideration, SSA affirmed the denial of both claims. A then filed a request for a hearing before an administrative law judge, following which the claims were remanded to the State disability determination service for further review. As a result of this review, the denials were reversed and C was found entitled to disability insurance benefits and eligible for SSI benefits.
Following the award of benefits to his client, A filed a petition with SSA for approval and payment of a fee for the services he performed in connection with C's claims. On his petition, A itemized all services he performed in connection with both claims.
The issues to be decided in this case are:
Whether in concurrent title II-title XVI claims the attorney-representative may file a single fee petition for all services performed in connection with such claims;
Whether SSA may authorize a single fee for such services; and
Whether such single fee can be paid directly to an attorney-representative from the claimant's past-due title II benefits.
Section 206(a) of the Act provides, in pertinent part, that:
"The Secretary may, by the rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Secretary under this title ..."
The identical provision appears in section 1631(d)(2) of the Act. However, the Act is silent as to the determination of a fee for services in connection with concurrent title II-title XVI claims.
In claims under title II, § 404.1720(b)(1) of Regulations No. 4 provides that an attorney-representative must file a written request with SSA for approval of a fee before he or she may charge or receive a fee for services, and § 404.1725(a) of Regulations No. 4 specifies what information the attorney-representative must include on a request for approval of a fee. The same provisions in claims under title XVI are provided in §§ 4l6.1520(b)(1) and 416.1525(a) of Regulations No. 16. The regulations are silent, however, as to what procedures an attorney-representative should follow if he or she has rendered services in connection with concurrent title II-title XVI claims.
In claims under title II, § 404.1720(b)(2) of Regulations No. 4 provides that SSA will determine a fee for a representative's services and § 404.1725(b) of Regulations No. 4 provides the evaluative criteria for making such a determination. The same provisions in claims under title XVI are provided in §§ 416.1520(b)(2) and 416.1525(b) of Regulations No. 16. Again, the regulations are silent as to SSA's fee-setting responsibilities in concurrent title II-title XVI claims.
Although attorney A rendered services in connection with two distinct claims for benefits, some of which were devoted exclusively to the title II claim and others exclusively to the title XVI claim, the issue critical to both entitlement under title II and eligibility under title XVI was that of disability, the definition of which is effectively identical in titles II (section 223(d)(1)) and XVI (section 1614(a)(3)(A)) of the Act. By virtue of this common definition of disability, the determination of C's entitlement under title II and eligibility under title XVI was reduced to a single substantive issue. A's services rendered to resolve that common issue were equally applicable to both the title II and the title XVI claims.
Consequently, A did not perform two sets of services that were different in all respects. Although some of his services were unique to the title II claim and others were unique to the title XVI claim, he performed one set of services in regard to the central issue of disability which was applicable simultaneously and in equal degree to both claims. To require A to identify on one fee petition the services he performed for the title II claim and to identify on a second fee petition the services he performed for the title XVI claim would result, for the most part, in duplicate listings of the same services on both petitions. If SSA were to authorize separate fees based on evaluations of the two petitions, the practical result would be authorization for attorney A to charge and receive a duplicate fee for the same services. Further, the authorization of duplicate fees in this case would make C liable for payment of fees in a substantially greater amount than if one fee were authorized for all services rendered in both claims. In summary, requiring A to submit two fee petitions so SSA could set two fees could lead to a distorted account of the services rendered and an inequitable result.
Accordingly, it is held that attorney A need submit only one fee petition covering all the services he rendered in connection with both of C's claims, and that SSA need determine only one fee for the combined services rendered in both claims.
It must next be determined whether the single fee authorized for A's services can be paid directly to A out of C's past-due title II benefits. Section 206(a) of the Act, as pertinent here, provides that:
"Whenever the Secretary, in any claim before him for benefits under this title, makes a determination favorable to the claimant, he shall, if the claimant was represented by an attorney in connection with such claim, fix ... a reasonable fee to compensate such attorney for the services performed by him in connection with such claim. If, as a result of such determination, such claimant is entitled to past-due benefits under this title, the Secretary shall ... certify for payment (out of such past-due benefits) to such attorney an amount equal to whichever of the following is the smaller:
(A) 25 percentum of the total amount of such past-due benefits,
(B) The amount of the attorney's fee so fixed, or
(C) The amount agreed upon between the claimant and such attorney as the fee for such attorney's services."
However, section 1631(d)(2) of the Act provides no authority for direct payment out of past-due benefits for fees for services in connection with proceedings under title XVI. In fact, § 416.1520(c)(3) of Regulations No. 16 states explicitly that SSA is not responsible for the payment of fees it approves for representation in proceedings under title XVI.
It is clear, therefore, that any part of A's fee attributable to services that were rendered exclusively in connection with C's title II claim must, consistent with the provisions of section 206(a), be paid to A out of C's past-due title II benefits. It is equally clear that any part of A's fee attributable to services that were rendered exclusively in connection with C's title XVI claim cannot be paid directly to A out of C's past-due benefits. However, A's services, for the most part, were concerned with establishing C's disability, which was the common issue in both of C's claims. A's substantive services, therefore, were rendered in connection with both claims, and were unique neither to one claim nor to the other.
Since section 206(a) requires payment of a fee out of title II past-due benefits for all legal services reasonably required in prosecution of the title II claim, it is irrelevant that some or all of such services were rendered simultaneously in connection with a concurrent title XVI claim. That such services were required and were rendered in connection with a title II claim is sufficient basis for payment of the fee for such services out of the title II past-due benefits.
Accordingly, it is held that the fee authorized for the services A rendered in connection with C's concurrent title II-title XVI claims can be paid out of C's title II past-due benefits, except for that portion of the fee attributable to services rendered exclusively in connection with the title XVI claim.
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