BASIC (09-06)

PS 09905.001 All States

A. PS 10-123 Potential Conflict of Interest Involving Disability Determination Service Consultant Working For Attorney Representing Social Security Disability Claimants

DATE: July 9, 2010

1. SYLLABUS

To avoid all implications of possible conflict of interest, the opinion precludes medical and psychological consultants from consulting with an appointed representative appealing SSA disability determinations.

2. OPINION

You asked whether it is a conflict of interest for a State DDS contract medical consultant (MC) to also work or consult with an attorney representative on SSA disability claims. You also asked, assuming such work would not be a conflict of interest, if an MC would need to recuse himself from working on any case in which he was previously involved or any case arising in the state of Missouri. We believe that a business relationship between an MC and attorney representative would represent a conflict of interest under SSA regulations. We also believe that no recusal from certain cases or confinement of the consulting relationship to cases arising only outside of the MC’s state would allow such a relationship to be permitted under the regulations.

Factual Background

On May 26, 2010, an MC under contract with the Missouri DDS requested guidance concerning outside employment. The MC was approached by an attorney who represents Social Security disability claimants on appeals in Missouri and Illinois. The attorney inquired whether the MC would be able to provide consulting services for his Social Security disability cases. The MC sought guidance from the Agency concerning whether outside consulting with the attorney would constitute a conflict of interest due to his work in Missouri, and whether there were any measures he could take to pursue such work while avoiding a conflict of interest.

Analysis

A conflict of interest is “a real or seeming incompatibility between one’s private interests and one’s public or fiduciary duties.” Blacks’s Law Dictionary (8th ed. 2004). The regulations at 20 C.F.R. §§ 404.1519q and 416.919q (2009)1

[a]ll implications of possible conflict of interest between medical or psychological consultants and their medical or psychological practices will be avoided. Such consultants are not only those physicians and psychologists who work for us directly but are also those who do review and adjudication work in the State agencies.

Id. The plain text of the regulations broadly preclude any activity by an MC that could possibly be construed as a conflict of interest. As an example, the regulations preclude MC’s who perform review work from having any financial interest directly or indirectly, even through a family member, in “a medical partnership, corporation, or similar relationship in which consultative examinations are provided.” Id.

Applying the regulations to the question presented, we believe that they would preclude the proposed relationship between an MC and an attorney representing claimants in Social Security disability appeals. An attorney appealing a decision of the agency clearly has an interest adverse to the agency. Any work in support of such efforts would be against the agency’s interests. It would be reasonable to assume that consulting services rendered by an MC to the attorney would be focused at least in part on identifying possible challenges to the agency’s medical determinations in disability cases. An MC helping an opposing attorney develop arguments against determinations made by other MC’s working for the State DDS or the Agency is a clear conflict of interest. Such a relationship would not avoid “[a]ll implications of possible conflict of interest. . . .” Id. Further, given the inherent conflict of interest in such a relationship and the broad prohibition on conflicts set forth in the regulation, we do not believe that recusal from certain cases or consulting on cases originating only outside the region covered by the MC would render such consulting permissible under the regulations.

CONCLUSION

We believe that 20 C.F.R. §§ 404.1519q and 416.919q preclude a State DDS Medical Consultant from consulting with an attorney representative appealing SSA disability determinations. We also believe that an MC could not avoid the prohibition described by the regulations by recusing himself from certain cases or only consulting on cases from other jurisdictions.

Kristi A. S~

Chief Counsel, Region VII

By ___________

Sean N. S~

Assistant Regional Counsel

B. PS 10-100 ALJ Subpoena Power - REPLY

DATE: May 18, 2010

1. SYLLABUS

An ALJ may not use his or her subpoena power to obtain release of “biological evidence” in the form of blood samples. An ALJ’s subpoena power is limited to obtaining witness testimony and documentary evidence such as books, records, correspondence, and papers.

2. OPINION

QUESTIONS PRESENTED

You have asked whether an Administrative Law Judge (ALJ) may subpoena a medical examiner’s office for release of a deceased number holder’s “biological evidence,” in this case blood samples, to a DNA testing facility. If so, you have asked how the ALJ should handle costs in addition to service of the subpoena.

SHORT ANSWER

An ALJ may not use his or her subpoena power to obtain release of “biological evidence” in the form of blood samples. An ALJ’s subpoena power is limited to obtaining witness testimony and documentary evidence such as books, records, correspondence, and papers. The procedures for payment of fees and travel allowances for subpoenaed witnesses are set forth in the Commissioner’s regulations, the Hearings, Appeals, and Litigation Law Manual (HALLEX), and the Administrative Instruction Manual System (AIMS). The Commissioner’s regulations, the HALLEX, the AIMS, and the Program Operations Manual System (POMS) also have instructions regarding payment of costs for existing nonmedical and medical evidence of record and for tests requested by an ALJ.

DISCUSSION

Facts

According to information that you provided, Andrew W. H~ died in July 2009 while domiciled in Arizona. Nora S~, who lives with her child in Iowa, applied on the child’s behalf for surviving child’s insurance benefits on the decedent’s earnings record. According to Ms. S~, the Maricopa County Medical Examiner’s Office performed an autopsy on Mr. H~ and kept blood samples. In an effort to establish paternity, Ms. S~ has asked the ALJ to subpoena the Maricopa County Medical Examiner’s Office for release of “biological evidence” to a DNA testing center in Ohio. According to Ms. S~, the medical examiner’s office refuses to release the blood samples to the DNA testing center without written authorization from Mr. H~’s next of kin or a court ordered subpoena.2 She also alleges that attempts to obtain acceptable written authorization from Mr. H~’s mother for release of the blood samples have been unsuccessful.3

Surviving Child’s Insurance Benefits and Arizona Laws on Intestacy and Paternity

The most obvious of the requirements for surviving child’s benefits is that the applicant be the “child” of an insured individual. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. In relevant part, the Social Security Act (the Act) defines “child” as the child or legally adopted child of an individual. 42 U.S.C. § 416(e)(1). The Act's definition of child is met if the applicant is able to inherit from the insured under state law, if the insured were to die without leaving a will. Id. § 416(h)(2)(A); 20 C.F.R. §§ 404. 355(a)(1), (b). In determining whether an applicant should be considered the child of an insured individual, the Commissioner applies the law governing intestate transfers in the state where the decedent was domiciled at the time of his or her death. 42 U.S.C. § 416 (h)(2)(A).

Under Arizona intestacy law, a child may inherit if he or she is the issue of the decedent. Ariz. Rev. Stat. Ann. § 14-2103(1). The paternity determination statute provides that a man is presumed to be the father of the child if genetic testing affirms at least a 95% probability of paternity. Id. § 25-814(3); see also id. § 25-807(D) (noting that a party may rebut this presumption only by clear and convincing evidence).4

For the reasons discussed below, an ALJ does not have authority to subpoena the release of blood samples.

ALJ Subpoena Power

The Act gives the Commissioner power to issue subpoenas in administrative proceedings. Section 205(d) of the Act provides that:

For the purpose of any hearing, investigation, or other proceeding authorized or directed under this subchapter, or relative to any matter within the Commissioner’s jurisdiction hereunder, the Commissioner of Social Security shall have power to issue subpenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner of Social Security. Such attendance of witnesses and production of evidence at the designated place of such hearing, investigation, or other proceeding may be required from any place in the United States or in any Territory or possession thereof. Subpenas of the Commissioner of Social Security shall be served by anyone authorized by the Commissioner

. . . .

42 U.S.C. § 405(d).5

Section 205(a) of the Act gives the Commissioner “full power and authority . . . . to adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the rights to benefits hereunder.” Id. § 405(a). Consistent with the Act, the Commissioner has adopted regulations that authorize an ALJ or member of the Appeals Council to issue subpoenas on behalf of the Commissioner. However, the regulations also limit subpoena power, providing that an ALJ or member of the Appeals Council may issue subpoenas only “for the appearance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents that are material to an issue at the hearing.” 20 C.F.R. §§ 404.950(d), 416.1450(d);6 see also POMS DI 33010.050; HALLEX I-2-5-78. These regulations reflect a reasonable and permissible interpretation of the Act, and should be given deference by any reviewing court. See Barnhart v. Walton, 535 U.S. 212, 218 (2002) (citing Chevron U.S.A. Inc. v. Natural Resources Defence Council Inc., 467 U.S. 837, 842-43 (2009); United States v. Mead Corp., 533 U.S. 218, 227 (2001)).

§ 404.950(d)(2). "If an ALJ denies a claimant’s request for a subpoena, the ALJ must provide the claimant with written notification of the denial of the request. . . [that] include[s] rational that explains why the ALJ declined to issue a subpoena . . . ." HALLEX I-2-5-78(D).

In light of the Commissioner’s interpretive regulations that restrict ALJs to issuing subpoenas for witness testimony and documentary evidence, an ALJ does not have authority to issue a subpoena for "biological evidence" that is not in this form. Further, the claimant seeking benefits is responsible for obtaining and providing evidence needed to prove eligibility. 20 C.F.R. § 404.704 ("When evidence is needed to prove your eligibility . . . you will be responsible for obtaining and giving the evidence ot us. We will be glad to advise you what is needed and how to get it and we will consider any evidence you give us."). Courts have recognized that, "[i]n child benefit cases, the claimant bears the burden of proving entitlement as the child of a deceased insured wage earner." Younger o/b/o Younger v. Shalala, 30 F.3d 1265, 1266 (10th Cir. 1994) (citing Morris ex rel. Morris v. Bowen, 646 F. Supp. 363, 364 (W.D. Tex. 1986)).

Ms. S~ may have to enlist the help of a state court to obtain the blood samples. As in Schoenfeld v. Apfel, 237 F.3d 788 (7th Cir. 2001), which involved an ALJ’s refusal to order paternity tests,7 "it has been and continues to be within [the mother’s] power, as guardian of those children, to have those tests carried out." Id. at 799. Here, in order to facilitate DNA testing, the mother may want to consider filing suit to determine paternity. In Arizona, for example, "[p]roceedings to establish maternity and paternity have precedence over other civil proceedings. The case shall be set for trial within sixty days from the filing of an answer by the respondent." Ariz. Rev. Stat. Ann. § 25-807(A); see also id. § 25-803(A) (the mother may commence proceedings to establish paternity of a child).8 On its own motion or that of any party to the proceeding, the court can issue a subpoena to the Maricopa Medical Examiner’s Office for release of the “biological evidence” for DNA testing. Id. § 25-807(c).9

Payment of Costs in Addition to Service of the Subpoena

In addition to paying the cost of issuing a subpoena, the Commissioner’s regulations provide that “we will pay subpoenaed witnesses the same fees and mileage they would receive if they had been subpoenaed by a Federal district court.” 20 C.F.R. §§ 404.950(3), (4). Section I-2-5-80(C) of the HALLEX also discusses payment of subpoenaed individuals for witness fees and travel allowances and refers to section 07.26.00 of the AIMS, Financial Management Manual (FFM), for specific reimbursement procedures and fee schedules. See also AIMS, FFM 07.01.02(O) (public laws regarding reimbursement).

By regulation, the agency may pay for tests approved by the agency, see 20 C.F.R. § 404.1517, and “will pay physicians not employed by the Federal government and other non-Federal providers of medical services for the reasonable cost of providing [the agency] with existing medical evidence . . . .” Id. § 404.1514; see also HALLEX I-2-5-1 (same), I-2-5-68 (Obtaining Non-Medical Evidence Directly From the Source), I-2-5-14(B) (Obtaining Medical Evidence from a Treating Source or Other Medical Source), I-2-5-14(B)(5) (noting that the hearing office is authorized to pay the same amounts for reports that the State agency would pay and citing POMS DI 11010.545 (Payment for Medical Evidence of Record) and POMS DI 22505.040 (Payment for Medical Evidence of Record-DDS)); AIMS, Materiel Resources Manual 06.02.07(A)(5) (ALJ is one of the positions listed with “[a]uthority to purchased medical evidence of record necessary to adjudicate claims under the juristdiction of ODAR, not to exceed $1,000 in any transaction”). However, an ALJ can only purchase reports of paternity testing that has already been conducted and cannot purchase DNA testing through a consultative evaluation. See POMS GN 00301.210(A)(2)(c).

CONCLUSION

The Commissioner’s regulations and policies governing subpoenas do not permit an ALJ to subpoena any evidence that is not in the form of witness testimony or documentary evidence such as a book, record, correspondence, and papers. The Commissioner’s regulations, the HALLEX, the POMS, and the AIMS contain provisions that cover witness fees and travel expenses incurred pursuant to a duly ordered subpoena, as well as provisions that cover the cost of non-medical or medical evidence of record requested or tests arranged by the ALJ. While an ALJ may request a report of an existing paternity test necessary to adjudicate a claim, an ALJ may not use his or her subpoena power to order the parties to undergo paternity testing or to obtain blood samples or other genetic materials necessary to conduct the test.

Donna L. C~

Acting Regional Chief Counsel, Region VIII

By /s/ Yvette G. K~

Yvette G. K~

Assistant Regional Counsel

C. PS 08-066 Compliance with a Consent for Release of Information

DATE: February 19, 2008

1. SYLLABUS

This opinion addresses compliance with a claimant's consent to release information to a third party who is not an authorized representative and who receives disability benefits based on a mental impairment.

2. OPINION

BACKGROUND

According to the information provided, your office received an inquiry from Mickey A~, the Georgia DDS director, requesting guidance from our office regarding a disclosure issue involving an individual named Patricia O~. Ms. O~ describes herself as a "Chaplain/ Advocate" on the disability application of another individual, Antoinette E. P~ (Claimant). Ms. O~ has been contacting a Georgia DDS adjudicator to discuss Claimant's claim, but she has refused to sign an Appointment of Representative form (SSA-1686). Instead, Ms. O~ had Claimant sign a Consent to Release Information (SSA 3288). Claimant designated Ms. O~ as one of the persons to whom the Georgia DSS should release her records.

Based on information from the Cooperative Disability Investigations (CDI) unit, the Georgia DDS knows that Ms. O~ receives disability benefits based on a mental condition. The Georgia DDS also reports that Ms. O~ is very demanding and unreasonable in her contacts. The Georgia DDS is concerned that it is legally bound to release Claimant's records to Ms. O~ because Claimant has signed a consent releasing her records to Ms. O~. You also informed us that the Georgia DDS does not question Claimant's capacity to provide consent for the release of her records, nor does the DDS question any other aspect of the consent.

DISCUSSION

The Privacy Act authorizes an individual to access or consent to the disclosure of his or her records. See 5 U.S.C. § 552a(b), (d)(1). SSA's regulations implementing the Privacy Act and Section 1106(a)(1) of the Social Security Act, 42 U.S.C. § 1306(a)(1), also state that an individual has a right to access his or her records and may consent to the disclosure of his or her records to a named individual. See 20 C.F.R. §§ 401.40(a), 401.50(a), 401.100(b) (2008). The Program Operations Manual System (POMS) provides further guidance regarding an individual's ability to consent to the release of his or her records. "Under the Privacy Act (5 U.S.C. § 552a(b)), an individual may give SSA written consent to disclose his/her personal information to a third party of his/her choosing." POMS GN 03305.001B. The POMS also states: "At the written request of an individual, his/er records can be furnished to a third party (individual or group) who is merely the recipient of the record and is not authorized to act on behalf of the individual." POMS GN 03340.040A.1.

Under these provisions, Claimant may consent to the release of her records to any individual, including Ms. O~. Although the Georgia DDS may have concerns regarding Ms. O~'s mental capacity or her actions with respect to Claimant's disability claim, those concerns do not provide a basis for the Georgia DDS to withhold Claimant's records from Ms. O~. We have been unable to find any provision of the Privacy Act, the Social Security Act, the regulations, or the POMS that would allow the Georgia DDS to refuse to comply with Claimant's consent to release her records to Ms. O~.

CONCLUSION

The Georgia DDS is legally bound to comply with Claimant's consent to release her records to Ms. O~, absent any questions regarding Claimant's ability to consent or the propriety of the consent itself.

Deana R. E~-L~
Regional Chief Counsel, Region VIII

By ___________________________
Robert L. V. S~
Assistant Regional Counsel

D. PS 04-133 Attorney Liens on Attorney Fees Bruce J~: ~

DATE: July 23, 2002

1. SYLLABUS

This opinion states that a claimant representative may not place a lien on an individual's benefits in an attempt to collect (see 42 U.S.C. § 407) payment.

It further states the approved methods of fee collections, as indicated in 42 U.S.C. § 406.

2. OPINION

You asked whether an attorney may put an attorney's lien on the social security benefits of a successful claimant. The answer is no. The Social Security Act, under 42 U.S.C. § 406, establishes the exclusive regime for obtaining fees for successful representation of Social Security benefits claimants. Disability benefits are not subject to attachment or lien by creditors and no exception was carved out in the statute for an attorney's lien.

Background

Debra B~ filed a claim for social security disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Ms. B~ signed a "Appointment of Representative" and fee agreement with Alex B~. Apparently, Ms. B~ subsequently discharged Mr. B~ and named Bruce J~ to represent her. Ms. B~ signed an "Appointment of Representative" and a second fee agreement, this time with Mr. J~. Ms. B~ was successful in her applications and was awarded benefits. Mr. B~ subsequently wrote a letter to Mr. J~ claiming an attorney's lien on Ms. B~'s disability benefits.

Discussion

Anti-attachment Provision - 42 U.S.C. § 407

Section 207 of the Social Security Act, 42 U.S.C. § 407, provides that:

  1. The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

  2. No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.

Like anti-attachment provisions generally, see Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973); Wissner v. Wissner, 338 U.S. 655 (1950), the statutory language is broadly phrased and announces a legislative objective of assuring that Social Security disability benefits actually reach the beneficiary. Accordingly, the Supreme Court of the United States held, "[s]ection 407(a) unambiguously rules out any attempt to attach Social Security benefits." Bennett v. Arkansas, 485 U.S. 395, 397 (1988). The House Conference Report on the Supplemental Security Income legislation stressed, ". . . . if the benefits which would be provided under this program are to meet the most basic needs of the poor, the benefits must be protected from seizure in legal processes against the beneficiary. Therefore, any amounts paid or payable under this program would not be subject to levy, garnishment, or other legal process, except the collection of delinquent Federal taxes. Also, entitlement to these benefits would not be transferable or assignable." 1972 U.S. Code Cong. & Admn. News 5142.

However, Congress foresaw that the pursuit of entitlement to benefits might require legal assistance and, in 42 U.S.C. §§ 406(a)(2) and 1383(d)(2) of the Social Security Act, authorized the Commissioner to prescribe regulations for the recognition and payment of claimants' representatives. The implementing regulations appear at 20 C.F.R. §§ 404.1700 et seq. and 416.1500 et seq. This section allows the Commissioner to certify for payment to the claimant's attorney a certain percentage of past due benefits. If the Commissioner does not certify payment to the attorney, the attorney is precluded by 42 U.S.C. § 407 from claiming a lien on the claimant's benefits.

Attorney Representation - 42 U.S.C. § 406

The Social Security Act and regulations provide two methods by which fees can be set for attorneys who represent claimants in cases before the Social Security Administration. See 42 U.S.C. § 406. Fees may be obtained by filing a "fee petition" under 42 U.S.C. § 406(a)(1) or through the fee agreement provision of 42 U.S.C. § 406(a)(2)-(3). The Social Security Administration certifies the fee for payment out of the past-due benefits owed to the claimant. See 42 U.S.C. § 406(a)(4); 20 C.F.R. § 404.1730(b). Thus, "[t]he prescriptions set out in §§ 406(a) and (b) establish the exclusive regime for obtaining fees for successful representation of Social Security benefits claimant." See Gisbrecht, 122 S.Ct. at 1822. In either case, once the fee is approved, the Social Security Administration may certify for payment out of past-due benefits so much of the fee that does not exceed 25% of such past-due benefits. See 42 U.S.C. § 406(a)(4).

Fee Petitions

As noted above, fee may be obtained by filing a "fee petition" under 42 U.S.C. § 406(a)(1). Section 406(a) provides that the Social Security Administration should set a "reasonable fee" for representation services before the Agency in every case in which a favorable benefit determination is made. To implement this provision, the Social Security Administration, in 1980, issued regulations establishing a "fee petition" under which representatives must request and receive authorization to charge their clients a fee. See 20 C.F.R. § 404.1725. After the claimant has been awarded benefits, a representative must file a written request, itemizing the services provided, the time expended, and the amount the attorney wishes to charge. 20 C.F.R. § 404.1725(a). SSA then sets the amount of the fee based on both the purpose of the Act, which is to provide a measure of economic security to beneficiaries, and seven enumerated factors, including the extent of services performed and the level of skill and competence required. 20 C.F.R. § 404.1725(b)(1). Claimants or representatives who disagree with the fee determination may request administrative review. 20 C.F.R. § 404.1720(d). The fee determination is reviewed by an authorized official who did not take part in setting the fee, and the decision is not subject to further review. 20 C.F.R. § 404.1720(d)(1).

Fee Agreements

In 1990, Congress created as an alternative to fee petitions: fee agreements. See Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, tit. V, § 5106(a), 104 Stat. 1388, 1388-266 (1990). The "fee agreement" provisions established a second means for authorizing fees for attorneys representing Social Security claimants. 42 U.S.C. § 406(a)(2)-(3). A fee agreement must satisfy three prerequisites: (i) it must be submitted to the Commissioner in writing prior to the time the Commissioner makes a determination on the claim; (ii) it must specify a fee that does not exceed the lesser of 25% of the past-due benefits awarded or $5,300; and (iii) the Commissioner must make a determination favorable to the claimant. 42 U.S.C. § 406(a)(2)(A). If the Social Security Administration issues a favorable determination and if these requirements are satisfied, "then the Commissioner of Social Security shall approve that agreement at the time of the favorable determination, and ... the fee specified in the agreement shall be the maximum fee." 42 U.S.C. § 406(a)(2)(A). An approved agreement sets the maximum fee, and SSA then notifies the claimant and the representative of the amount of the past-due benefits, the maximum fee set by the agreement, and the method of obtaining administrative review of the fee amount. 42 U.S.C. § 406(a)(2)(D).

Where Two or More Attorneys Represent a Claim

In providing for both fee petitions and fee agreements, Congress made an important distinction: fee petitions have no maximum, whereas fee agreements do. If fee agreements did not provide for a maximum fee, the potential for abuse would be very great. While 42 U.S.C. § 406(a)(2) is silent as to what the Commissioner should do if presented with more than one fee agreement, the three statutory prerequisites, as well as the "shall approve" clause, are all written in the singular suggesting that Congress did not intend to address situations in which multiple attorneys presented agreements. See Powers v. Barnhart, -- F.3d --, 2002 WL 1275561, No. 01-5182 at *3 (D.C. Cir. June 11, 2002). If there were a mandatory duty to approve any agreement that met the three prerequisites of 42 U.S.C. § 406(a)(2)(A), then approval of more than one fee agreement could conflict with the important purposes of § 42 U.S.C. § 406(a): to cap the amount that a claimant may agree to pay in attorneys' fees at the lesser of 25% of his recovery or $5,300 and to ensure that disability benefits actually reach the beneficiary.

Fee petitions are different; since the attorney provides documentation of services provided and time spent, the potential for abuse is much less, even without a statutory maximum. For this reason, where more than one attorney represented a Social Security claimant, each is permitted to file a separate fee petition. The potential for abuse is minimized, because SSA will review the petitions to make sure that they are reasonable.

The Hearings, Appeals, and Litigation Law Manual ("HALLEX") I-5-109 clarifies the matter of what to do when two or more unrelated attorneys submit fee agreements.

Question #24 states:

If a claimant had two representatives but the first representative waived his or her fee, does exception a. in IV.A.2. of HALLEX TI 5-109 still apply?

No. Because the first representative waived his or her fee, this exception does not apply.

Neither does exception c. of the same section.

The purpose of these two exceptions is to avoid a situation in which a decision maker might inadvertently approve the fee agreement of both representatives and authorize each representative to collect the maximum amount allowed by the statute. Once one of the representatives waives his or her fee, the situation mentioned above is no longer at issue.

HALLEX I-5-109, question #24 (emphasis added). The POMS also states that a fee request must be made by fee petition where two ore more attorney's represent a claimant. See POMS GN 03940.025(C)(4). Thus, where a claimant had two representatives, and one representative did not waive his or her fee, neither representative is eligible for fees under the fee agreement process. This is consistent with the intent of Congress.

The Agency recently defended this policy in the Power's case. Like the case at hand, Powers dealt with a situation in which the Agency was presented with two attorneys who had represented the claimant over the course of his claim. See Powers, 2002 WL 1275561 at * 1-2. In that matter, "the Deputy Chief ALJ explained that '[s]ince the claimant appointed more than one representative, and did not sign a single, common fee agreement or waive charging and collecting a fee, the Social Security Administration cannot process your fee under the fee agreement process.'" See Powers, 2002 WL 1275561 at *2 (citing letter from Deputy Chief ALJ dated July 6, 1999). The Deputy Chief ALJ advised Power that he would have to "file a fee petition." (Id.).

Here, Alex B~ has not submitted a fee petition, nor has he sought a fee waiver from Bruce J~. Instead, Mr. B~ has claimed a lien on the disability benefits of the claimant. This is inappropriate. To obtain fees, Mr. B~ must file a fee petition. If appropriate, the Agency may certify for payment some or all of any approved fees out of the claimant's past-due benefits.

Conclusion

The Social Security Act ensures that social security disability benefits actually reach the beneficiary. Therefore, an attorney may not place a lien on the benefits of a beneficiary under the 42 U.S.C. § 407.

Furthermore, where the record contains more than one fee agreement, the Social Security Administration will not process any fee under the fee agreement process. Rather, the attorneys must file separate fee petitions in order to receive any fees from the claimant's past due benefits for their services rendered.

Sincerely,
Thomas W. C~
Chief Counsel, Region V

By:__________________________
Alfred C. S~
Assistant Regional Counsel


Footnotes:

[1]

The two regulations are identical and apply to Title II and Title XVI cases respectively. Govern conflicts of interest involving medical consultants. The regulations provide that:

[2]

This advice appears to be based on Ariz. Rev. Stat. § 12-2294.01(B)(2), which requires a subpoena for medical records be “accompanied by a court or tribunal order that requires the release of the records to the party seeking the records . . . .”

[3]

You also informed us that Mr. H~’s mother supposedly signed an authorization form that “was provided to one office, but not to another office that requires such”; that the Maricopa County Medical Examiner’s Office refuses to release the blood samples because of this mix-up; and that Ms. S~ has been unable to contact Mr. H~’s mother again to have her sign another authorization form.

[4]

Presumably, Ms. S~ cannot satisfy any of the other three statutory requirements to establish a presumption of paternity, i.e., that she and the deceased number holder were married within the prescribed time periods, that Mr. H~ signed the child’s birth certificate, or that he acknowledged paternity in a notarized or witnessed statement. Ariz. Rev. Stat. Ann. §§ 25-814(A)(1), (3), (4). Prior to January 1, 1975, for purposes of intestate succession, paternity had to be “established by an adjudication before the death of the father or [] established thereafter by clear and convincing proof . . . .” Ariz. Laws 1973, ch. 75, § 4 (repealed by Ariz. Laws 1994, ch. 290, § 5 (1995)).

[5]

An ALJ has no independent authority to enforce a duly served subpoena, however. See 42 U.S.C. 405(e). He or she must prepare a memorandum for the Regional Chief Counsel of the Office of the General Counsel (OGC) that attaches a copy of the subpoena and any certified mail receipts, and describes in detail the circumstances of the case, the evidence or facts sought, and why the evidence or facts are essential. In turn, OGC will ask the appropriate Office of the United States Attorney to seek enforcement in federal district court. HALLEX I-2-5-82 (Noncompliance with a Subpoena).

[6]

The regulations also provide that a subpoena request must be in writing and filed with the ALJ at least five days before the hearing date, give the names of the witnesses or documents to be produced, describe the address or location of the witnesses or documents with sufficient detail to find them, state the important facts that the witness or document is expected to prove, and indicate why these facts could not be proven without issuing a subpoena. 20 C.F.R.

[7]

In this case, while appellant did not specifically request that the ALJ issue a subpoena, she argued that the ALJ failed to complete a factual record because he refused to request paternity testing. In rejecting appellant’s argument, the court noted that "[w]hile tests were not requested by the Commissioner, even appellant notes that is questionable whether such requests would have to be honored." Schoenfeld, 237 F.3d at 798.

[8]

"Proceedings to establish . . . paternity may be originated in the county of residence of the respondent . . . . The fact that the petitioner