Deborah Rodriguez
April 22, 2014
Social Security & Disability
Seminar Assignment
Unit 4

In unit four, we learned about the attorney fees that came up with our assignment. There are two main sources of attorney’s fees in Social Security cases. Most awards by far are paid by the claimant, usually out of past-due benefits. Another source of fees is the Equal Access to Justice Act (EAJA), a federal fee-shifting statute. For the most part, attorney’s fees for OASDI and SSI claims are governed by the same or similar rules. Many of the same rules apply also to non-attorney representatives. Attorney’s fees paid out of the claimant’s benefits are regulated by statute and regulations. Fees for claims resolved within SSA are authorized at the administrative level where the final decision is reached. Thus, administrative law judges approve fees in cases where a favorable hearing decision was issued, and the Appeals Council authorizes fees in cases decided finally only by the Appeals Council. The representative must file a request for fees in writing, which must include a list of services performed, the amount of the fee, and any expenses incurred. SSA considers a number of factors when evaluating a representative’s request for fees, including the type and amount of services performed, the difficulty of the case (including the skill required of the representative), and the results achieved. Although the amount of benefits received is taken into consideration, it does not control the amount of fee authorized. Separate from its role in authorizing the amount of fees, which are not subject to a statutory limit and can be awarded even if no past-due benefits are due, SSA will withhold up to 25% of past due benefits for direct payment to attorneys for agency level representation. Until recently, the Social Security Act authorized withholding of past due benefits for direct payment of fees only under the OASDI program; however, Congress extended the program to SSI claims under a 5-year demonstration project that also tested withholding and direct payments to certain non-attorney representatives.