Last Update: 2/25/05 (Transmittal I-1-48)
Section 206(b)(1) and 1631(d)(2) of the Act authorizes a Federal court, which renders a title II and/or, after February 27, 2005, a title XVI judgment favorable to the claimant who was represented before the court by an attorney, to authorize a reasonable fee for such representation. The attorney's fee may not exceed 25 percent of title II and/or title XVI past-due benefits. This fee is in addition to the fee, if any, the Social Security Administration (SSA) authorizes for proceedings at the administrative level. If a court awards a fee under this provision, SSA must pay the fee from withheld benefits. However, SSA withholds a maximum of 25 percent of past-due benefits for direct payment of fees, whether authorized by SSA, a court, or both. The attorney must obtain judicial authorization of a fee for services provided before a court, from the court that ultimately made the favorable judgment.
A court remand to the Commissioner for an award of benefits is considered a favorable court decision for fee purposes. The treatment of a court order which remands the case for further administrative proceedings depends on the outcome of those administrative proceedings. The courts have interpreted section 206(b)(1) to include as a favorable court decision for fee purposes court remands which result in a favorable administrative decision. In such cases, after the favorable administrative decision on remand, the court may award a reasonable fee for the attorney's services before the court in obtaining the remand, and we can pay court-ordered fee from withheld past-due benefits. If the proceedings on remand do not result in a favorable decision, however, the court's order remanding the case is not considered a favorable court decision for purposes of section 206(b) or 1631(d)(2) of the Act.
In the interim period after the Appeals Council (AC) denies a request for review but before the claimant files a civil action in the case, services are before the court if:
the representative's services involve counseling with the claimant concerning the advisability of filing a civil action,
the representative's services involve preparation of a civil complaint or motion to have the court set aside the AC's action, or
the representative's activities are directed to obtaining a decision or ruling from the court.
In some situations, a Federal court may authorize a fee for services provided before the court, and the Office of Disability Adjudication and Review may also authorize a fee for services provided before SSA. This dual authorization results from a strict interpretation of § 206(b) of the Social Security Act (i.e., the court's authorization is for services before the court only).
The definition of past-due benefits in administrative and court level cases is the same except that the past-due benefits period in court cases ends the month before the month of the court's favorable judgment. (See I-1-2-7 for a discussion of past-due benefits.)