TN 17 (03-05)
GN 03940.004 Fee Agreements - Partially Favorable and Subsequent Decisions - Titles II and XVI
A. Policy - Partially Favorable Decisions
If SSA issues a partially favorable decision, the decision maker will approve the fee agreement, subject to the conditions in GN 03940.003, and SSA will authorize a fee under the terms of the agreement.
NOTE: Do not confuse partially favorable or subsequent decisions with partial adjudication. Partial adjudication, described in GN 01010.110, is SSA's method of awarding benefits to a claimant before completing all development on a claim. When SSA partially adjudicates a claim, the decision is an interim action subject to revision. As such, SSA defers authorizing a fee in these claims until completing all development. (GN 03940.036 provides procedures for partial adjudication involving deferred development.)
B. Policy - Fee Agreement Submitted Before First Favorable Decision
The decision maker's approval of a fee agreement can remain in effect for any subsequent favorable decision SSA may issue on the same issue or issues, if there has been no change in pertinent circumstances and if the approval was proper. Accordingly, if a fee agreement was approved in connection with a favorable initial or reconsideration determination or a hearing decision, and on appeal SSA issues a subsequent favorable decision on the same issue or issues, no further action is required on the fee agreement unless the initial fee agreement approval was improper or there has been a change in the pertinent circumstances.
EXAMPLE: If a claims authorizer (CA) or claims technical examiner (CTE) has properly approved a fee agreement and on reconsideration a subsequent decision is issued that is either more or less favorable than the initial determination, the fee agreement will not require a second approval by a CA/CTE. However, if the CA's/CTE's approval was improper under the statute and the exceptions listed in GN 03940.003, or if there was a change in circumstances subsequent to the approval such that an exception applies, the PC reviewing official should rescind approval of the fee agreement. (Refer to GN 03940.020G. for procedures on processing incorrectly approved fee agreements.)
If on appeal, SSA makes a more favorable decision yielding additional benefits, SSA will use the additional benefits when recalculating the past-due benefits, and may authorize an additional fee under the fee agreement process, subject to the limits established by the fee agreement, but not to exceed the statutory maximum as indicated in GN 03940.003A.3., unless a higher amount is awarded on administrative review.
If on appeal, SSA makes a more favorable decision which yields past-due benefits in a case in which there were previously no past-due benefits, the decision maker evaluates the fee agreement in accordance with GN 03940.003.
C. Policy - Fee Agreement Submitted After First Favorable Decision
1. Requirement for Approval
To obtain SSA's approval to charge and collect a fee under the fee agreement process in a claim resulting in more than one favorable decision, the representative or the claimant must have filed the agreement with SSA before the date of the first favorable decision SSA made after the representative's involvement began.
SSA considers the representative involved in a claim when SSA receives the claimant's written appointment of that person as representative.
Unless the representative or the claimant files the fee agreement before the date of the first favorable decision SSA made after the representative's appointment, SSA presumes he/she will either waive a fee or use the fee petition process to obtain SSA's approval to charge and collect a fee.
If the representative or claimant does not file a fee agreement before SSA makes a favorable decision on a claim with which the representative is involved, yet files a fee agreement before SSA makes another favorable decision, the decision maker will disapprove the fee agreement for the following reason:
The Social Security Administration did not receive the written agreement before making the first favorable decision that the representative worked toward achieving in this claim.
2. Calculating Past-Due Benefits
For purposes of calculating a fee under an approved fee agreement in claims involving more than one favorable decision, "past-due benefits" are those additional benefits resulting from the favorable decision SSA made after the representative became involved in the claim. Refer to GN 03920.030, Representative’s Fee – Title II Past-Due Benefits, and GN 03920.031, Representative’s Fee - Title XVI Past-Due Benefits.
a. EXAMPLE 1
SSA initially decided that the claimant was not disabled. The claimant appointed a representative, who requested reconsideration. On December 20, 2002, SSA notified the claimant that she had been found disabled as of a date later than she alleged. The representative requested a hearing and, for the first time, presented a fee agreement specifying a fee equal to the lesser of 25 percent of past-due benefits or the applicable specified dollar amount of the fee cap as outlined in GN 03940.003A.3. After a hearing, the Administrative Law Judge (ALJ) found the claimant disabled as of the onset date alleged.
In this case, the ALJ will disapprove the agreement because the first favorable decision SSA made after the representative's involvement began is dated December 20, 2002. Neither the representative nor the claimant filed the fee agreement before the date of that determination. Therefore, the representative must file a fee petition to obtain SSA's approval to charge and collect a fee for services provided in connection with the claim.
b. EXAMPLE 2
SSA initially decided that the claimant was entitled to a period of disability and disability insurance benefits for a closed period. The claimant disagreed that her disability had ended, and appointed a representative to assist her in appealing. The representative filed a request for reconsideration, the Form SSA-1696-U4 (Appointment of Representative), and a copy of the fee agreement specifying a fee equal to the lesser of 25 percent of past-due benefits or the applicable specified dollar amount of the fee cap as outlined in GN 03940.003A.3. Upon reconsideration, SSA decided that the claimant's disability did not cease, but continued through the date of the decision.
Assuming the fee agreement meets the other requirements for approval, the decision maker will approve the fee agreement because the representative filed it before the date of the first favorable decision SSA made after the representative became involved in the claim.
NOTE: In this situation, the past-due benefits are those additional benefits that resulted from the new decision that the claimant's disability did not cease. Past-due benefits do not include the benefits SSA already paid the claimant as a result of the initial determination.
c. EXAMPLE 3
Based on an application filed on July 9, 2004, SSA decided that the unrepresented claimant became disabled on January 1, 2002, and was entitled to a period of disability and disability insurance benefits. After the claimant received that determination, he appointed a representative. In addition, the claimant submitted a fee agreement and requested that SSA reopen an unfavorable hearing decision dated March 15, 2004, that had been issued on an earlier application he had filed on December 12, 2002. The ALJ reopened the hearing decision and found the claimant entitled to benefits based on the 2002 application.
If the agreement meets the other requirements for approval, the ALJ should approve the fee agreement because the representative filed it before the date of the first favorable decision SSA made after the representative became involved in the claim.