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:
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 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.