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.

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):

• •

  emails a copy of the disability determination form, SSA-831-U3, to the subsequent claim coordinator in the Office of Appellate Operations (OAO), 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.

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 12045.027 and HALLEX I-1-10-5.)

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.

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.)

1. a. 

   SSA will consider both applications to constitute one claim for purposes of approving or disapproving a fee agreement.

2. b. 

   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 03940.003D.), 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.

3. c. 

   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 03940.003B.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).

4. d. 

   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, OAO, is the reviewer.

5. e. 

   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.

6. f. 

   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.

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.).

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 03940.003B.); and/or

• •

  is or is not excepted from the fee agreement process (refer to GN 03940.003D.).

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.

If the claimant is not represented in the prior application and does not indicate that the claimant is represented in the subsequent application, process the subsequent application without further documentation regarding representation.

If the claimant is represented in the prior application, ask the claimant the following questions:

1. a. 

   Does the claimant want that representative to represent the claimant 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:

2. b. 

   Does the claimant want another person to represent the claimant 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.

3. c. 

   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 the claimant 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.

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.

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).

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.

• •

  In filing a subsequent application in July 2023, the claimant indicates that the claimant 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 Representative Kirk entered into a fee agreement on July 1, 2023, providing that:

  • –

    the fee will not exceed the lesser of 25 percent of past-due benefits or $7,200 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 Representative Kirk to represent the claimant in the claimant's subsequent application, and obtains copies of the appointment and fee agreement, annotated to indicate that Representative 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 Representative 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 Representative Kirk, and directly pays Representative Kirk that amount less the applicable user fee.

• •

  In the prior application pending at the AC, the claimant also had appointed Representative Kirk, and had entered into a fee agreement on April 2, 2021, 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 $6,000.

• •

  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 Representative 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 $4,200 ($7,200 less the $3,000 previously authorized), and directly pays Representative 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.

• •

  In the subsequent application, the claimant appoints attorney Kirk of the firm of Kirk, Spock and McCoy, P.C. The claimant and Representative Kirk entered into a fee agreement on July 1, 2023, specifying a fee not to exceed the lesser of 25 percent of past-due benefits or $7,200.

• •

  The FO approves the fee agreement between the claimant and Representative 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 Representative Kirk, and directly pays Representative Kirk that amount less the applicable user fee.

• •

  In the prior application on review at the AC, the claimant had appointed Representative Kirk, and had also appointed attorney Spock of the same firm. The claimant and Kirk and Spock had entered into a fee agreement on April 1, 2021, 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 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 (Representative Spock) who did not sign the fee agreement in the subsequent application.

• •

  The AAJ:

  • –

    Issues an order to Representative Kirk rescinding the fee agreement approval the FO issued (in connection with the subsequent application and the fee agreement dated July 1, 2023) 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 Representatives 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 $7,200. 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 Representatives Kirk and Spock that they must send their fee petitions to the Attorney Fee Branch, OAO in order to charge and collect fees.

• •

  The PC notifies Representative Kirk that the fee based on the incorrectly approved fee agreement is no longer the authorized fee. However, Representative 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 Representatives Kirk and Spock file fee petitions, OAO's Attorney Fee Branch authorizes reasonable fees based on the representatives' services.

• •

  Based on the authorizations, the PC determines:

  • –

    whether Representative Kirk is owed any additional direct payment from withheld title II past-due benefits, considering the previous authorization of $4,500, or whether Representative Kirk 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 Representative Spock from withheld title II past-due benefits.