Turning Down the Heat on the "Remand for the Payment of Benefits"

I wrote about Dominguez v. Colvin last month.  The discussion focused on the intra-circuit battle over the Credit-as-True doctrine and the remand for the payment of benefits.  The Ninth Circuit issued an amended opinion in Dominguez.  The Court removed:

 "Only when all factual issues in the record have been resolved,
overwhelming evidence establishes that the claimant is disabled, and the government points to no evidence to the contrary, have we held a district court abused its discretion in failing to remand for benefits. See Garrison, 759 F.3d at 1022." 

That wasn't an accurate statement of the law and warranted removal from the decision.  The panel turned down the heat in the warring panels.

3. May a Representative that Worked on a Case and Subsequently Appointed Annotate on the Itemization Services Provided Before the Actual Appointment?

When the fee agreement process does not apply, a representative can charge and receive a fee only upon authorization of the Commissioner.  Before 1991, the fee petition process was the norm.  Now the fee petition process is the exception to the rule.  42 U.S.C. § 406(a)(1) describes the exception to the rule.    The fee petition process applies whenever the fee agreement process does not with limited exceptions.  HALLEX I-1-2-51.  The fee petition process is set out in the regulations.  See, 20 C.F.R. §§ 404.1720 and 416.1520.  Subsections (b) and (c) of those two sections both provide for the petition, decision, and review process.  This raises the question of the parameters of agency discretion in setting fees. 

A claimant can appoint a representative and that appointed representative can delegate to other persons work on a claim other than the actual appearance at a hearing.  POMS GN 03910.025.B.3.  That subsection states:

3. Delegation of Duties

Although an appointed representative may not redelegate his/her authority to represent the claimant to another person whom the claimant has not appointed, the appointed representative is not required to perform every task related to the representation personally. Appointed representatives often delegate such tasks as developing the claimant's medical record or preparing written materials regarding an appeal to an assistant. An unappointed assistant who is supervised and directed by the appointed representative may perform tasks of this nature, as long as the appointed representative personally makes the decisions central to presenting the claimant's case before SSA.

A representative may not delegate to an unappointed assistant the authority to undertake tasks that require making significant decisions regarding the case. Whoever performs such tasks is, by definition, a representative, and must be appointed as such by the claimant. Appearing as the claimant's advocate in a hearing before an Administrative Law Judge (ALJ), for example, requires making decisions about presenting evidence, cross-examining witnesses, arguing facts and law, and appealing any adverse ruling. Only an individual whom the claimant has appointed, and whom SSA has accepted, as the claimant's representative has the authority to perform such tasks.

The presentation of the arguments on the request for review would appear to cross the line into a non-delegable duty.  The question is whether a person not named on a form 1696 may perform duties tantamount to representation.  The regulations do not require an attorney to use form 1696.  20 C.F.R. § 416.1507.  That regulation states in relevant part that:

We will recognize a person as your representative if the following things are done:

(a) You sign a written notice stating that you want the person to be your representative in dealings with us.

(b) That person signs the notice, agreeing to be your representative, if the person is not an attorney. An attorney does not have to sign a notice of appointment.

In footnote 2 of the inquiry, SSA states that a claimant may only appoint a representative and that the agency does not represent a law firm.[i] 

     A reasonable reading of secs. 404.905 and 416.1505 permit an attorney to act as a representative in this matter in an independent capacity.  To the extent that only the appointee could act as a representative in this matter, the services rendered to a claimant, the appointee can delegate those duties.  This conclusion finds support where the Appeals Council accepts the presentation of those arguments.   

     The appointee should be the only person that submits a fee petition.  But a claimant can appoint more than one representative.  POMS GN 03910.040 ¶ B.3.  Where the claimant subsequently appoints the de facto representative with a form 1696, that person becomes the appointed representative nunc pro tunc.  A claimant that signs that form 1696 knowing that a de facto representative or delegee had undertaken substantial efforts on his/her behalf.  Validating representational activities nunc pro tunc constitutes a reasonable understanding by a subsequently appointed and ratified representative. 

     The question then becomes how to account for all the time.  The fee petition form does not permit a representative to parse out services rendered as a delegee from those as an appointment representative.  Paragraph 1 of the form SSA-1560-U4 directs:

Itemize on a separate page or pages the services you rendered before the Social Security Administration (SSA). […]  Attach to this petition the list showing the dates, the descriptions of each service, the actual time spent in each, and the total hours.

     The form calls for the itemization of all services rendered, not just those rendered after the appointment of representative got executed.  Whether those services are compensable under the petition of the ultimate representative or the earlier representative as the delegor of those prior acts constitutes a question that elevates form over substance.  To refrain from making full disclosure would have the net effect of misleading the agency as to the services rendered and by whom those services were rendered.  Whether those services are compensable to the ultimate representative or a prior representative forms the core of the question that the ALJ must ask as part of the fee authorization process. 

     The fee petition form cannot direct the representative in the situation of co-representation with overlapping or adjoining delegee and representative status to violate the call of the question by both listing and not listing the services the representative rendered from the Social Security Administration both before and after date of appointment.  If a delegee does not list all the services rendered before the Social Security Administration, then the agency could raise a concern that the delegee failed to make a full disclosure. 

     The fee petition form requires full disclosure and a delegee possessing a later formal appointment should always list all services rendered.  Where that second representative performed all the services under the two hats, the agency would waste scarce resources by requiring a fee petition for a supervising appointed representative and a second petition from the later appointed primary representative.  This observation rests not only on the nunc pro tunc later appointment but also on the patent proposition that the claimant does not retain a firm or a representative to invest time but to secure a result.  Factors 3, 4, 6, 7, and 8 do not focus on time and time should never become more than a guidepost to assess reasonableness to avoid an unconscionable fee. 

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[i] Please note that a claimant can retain a firm, partnership, or corporation.  HALLEX I-1-2-12.