# AR 93-3(6): AR 93-3(6): Akers v. Secretary of Health and Human Services , 966 F.2d 205 (6th Cir. 1992)--Attorney's Fees Based in Part on Continued Benefits Paid to Social Security Claimants--Title II of the Social Security Act

> Federal · Rulings · Rescinded

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_AR_AR_93_3_6

## Section

- **Citation:** AR 93-3(6)
- **Heading:** AR 93-3(6): Akers v. Secretary of Health and Human Services , 966 F.2d 205 (6th Cir. 1992)--Attorney's Fees Based in Part on Continued Benefits Paid to Social Security Claimants--Title II of the Social Security Act
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** Rescinded
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / AR / Sixth Circuit Court / AR 93-3(6)

## Text

AR 93-3(6) (Rescinded 4/14/2000)

EFFECTIVE DATE 07/29/93

Issue

Whether continued benefits paid to claimants pursuant to section 2(e) of
the Social Security Disability Benefits Reform Act of 1984 or section
223(g) of the Social Security Act (the Act) are ``past-due benefits''
within the meaning of section 206(b)(1) of the Act.

Statute/Regulation/Ruling Citation

Sections 206(b)(1) and 223(g) of the Social Security Act (42 U.S.C.
406(b)(1) and 423(g)); sections 2(d) and 2(e) of the Social Security
Disability Benefits Reform Act of 1984, Pub. L. No. 98-460; 20 CFR
404.1703; 20 CFR 404.1728-1730; and section 5106 of Pub. L. No. 101-508.

Circuit

Sixth (Kentucky, Michigan, Ohio, Tennessee).

Akers v. Secretary of Health and Human Services , 966 F.2d 205 (6th
Cir. 1992).

Applicability of Ruling

This Ruling applies to cases in which a court may allow an attorney's fee
as a result of a civil action in which the court has reversed the final
decision of the Secretary and awarded benefits to the claimant. It does
not affect the way the Social Security Administration (SSA) adjudicates
cases, but only affects how SSA calculates past-due benefits and disburses
accumulated past-due benefits within the meaning of section 206(b)(1) of
the Act.

Description of Case

In October 1987, SSA determined that plaintiff's medical condition had
improved and that his disability benefits would therefore cease as of
December 1987. Plaintiff requested reconsideration of the cessation
decision and received
continued [1] benefits pending
his appeal. SSA upheld the cessation determination throughout the
administrative process and discontinued the continuing benefits in June
1989. Plaintiff filed a complaint in the U.S. District Court for the
Eastern District of Kentucky. The district court reversed SSA's decision
and held that plaintiff's benefits should not have been terminated.
received
continued [1] benefits pending
his appeal. SSA upheld the cessation determination throughout the
administrative process and discontinued the continuing benefits in June
1989. Plaintiff filed a complaint in the U.S. District Court for the
Eastern District of Kentucky. The district court reversed SSA's decision
and held that plaintiff's benefits should not have been terminated.

Subsequently, plaintiff's counsel moved the district court pursuant to
section 206(b)(1) of the Act, for attorney's fees in the amount of
twenty-five percent of plaintiff's ``past-due benefits,'' including
continued benefits. The Secretary maintained that continued benefits are
not ``accumulated because of a favorable ... decision,'' (20 CFR
404.1703), and thus are not past-due benefits for purposes of calculating
attorney's fees. The district court accepted the Secretary's argument and
ordered SSA to pay plaintiff's counsel twenty-five percent of only those
benefits accrued since plaintiff's continued benefits were
discontinued.

Holding

In reversing the district court's decision, the Sixth Circuit held that
``interim benefits'' paid to social security claimants pursuant to the
Social Security Disability Benefits Reform Act of 1984 should be included
in the calculation of title II past-due benefits for the purpose of
awarding attorney's fees under section 206(b) of the Act. The court
rationalized its decision on several grounds. It first noted that
``interim benefits are similar to a loan, since they must be repaid by
unsuccessful claimants (absent waiver by the Secretary).'' Accordingly,
stated the court, a claimant is not ``entitled'' to the benefits absent a
final favorable decision
e purpose of
awarding attorney's fees under section 206(b) of the Act. The court
rationalized its decision on several grounds. It first noted that
``interim benefits are similar to a loan, since they must be repaid by
unsuccessful claimants (absent waiver by the Secretary).'' Accordingly,
stated the court, a claimant is not ``entitled'' to the benefits absent a
final favorable decision. Second, the court stated that the Secretary's
definition of past-due benefits would (1) Create an ``unjustifiable
dichotomy'' between attorneys of claimants who did and did not elect
``interim benefits;'' (2) Create a potential conflict between attorneys
and claimants; and (3) Impose greater hardships on claimants by
discouraging competent attorneys from representing them.

Additionally, the Sixth Circuit acknowledged that Congress had amended
section 206(a) of the Act, through the Omnibus Budget Reconciliation Act
of 1990, to exclude ``interim benefits'' from ``past-due benefits,'' for
purposes of calculating attorney's fees for representation before the
Secretary. The court did not apply the section 206(a) definition of
past-due benefits to cases under section 206(b), but could not infer any
congressional intent for excluding interim benefits from calculating
past-due benefits under section 206(b).

Statement as to How Akers Differs From Social Security
Policy

Under section 206 of the Act, the Secretary is authorized to withhold up
to 25 percent of the total of title II past-due benefits to which a
claimant is entitled for possible payment of attorney's fees. Although
section 206 does not expressly define past-due benefits for section 206(b)
purposes, 20 CFR 404.1703 defines past-due benefits as the total amount of
benefits payable under title II of the Act to all beneficiaries that has
accumulated because of a favorable administrative or judicial
determination or decision
hich a
claimant is entitled for possible payment of attorney's fees. Although
section 206 does not expressly define past-due benefits for section 206(b)
purposes, 20 CFR 404.1703 defines past-due benefits as the total amount of
benefits payable under title II of the Act to all beneficiaries that has
accumulated because of a favorable administrative or judicial
determination or decision. When calculating past-due benefits, SSA does
not consider continued benefits to be past-due benefits because (1) They
have already been paid and are, therefore, not accumulated and payable,
and (2) They result from legislation, not from an ``administrative or
judicial determination or decision.''

Accordingly, when computing the 25 percent withholding amount from which
attorney's fees can be paid, SSA considers only those benefits which are
payable to the claimant. Contrary to SSA's interpretation of the term
``past-due benefits,'' the court of appeals held that continued benefits
paid to social security claimants are included in past-due benefits for
the purpose of calculating attorney's fees under section 206(b).

Although Congress has expressly excluded continued benefits from the
calculation of ``past-due benefits'' for section 206(a) purposes, the
legislative history is silent as to whether continued benefits are to be
included in the amount of money available for court allowed attorney's
fees (section 206(b) cases). Under the Sixth Circuit Webb rule, the
tribunal (i.e., SSA or the court) which awards benefits sets the fee for
both administrative and court services. SSA believes its policy of not
including continued benefits in the ``past-due benefit'' calculation for
section 206(b) purposes addresses the overriding concern of Congress in
enacting section 223(g), i.e., to provide claimants with ``continuation of
payments during appeal ... to ease the severe financial and emotional
hardships that would otherwise be suffered.'' H.R. Rep. No. 98-618, 98th
Cong., 2d Sess
icy of not
including continued benefits in the ``past-due benefit'' calculation for
section 206(b) purposes addresses the overriding concern of Congress in
enacting section 223(g), i.e., to provide claimants with ``continuation of
payments during appeal ... to ease the severe financial and emotional
hardships that would otherwise be suffered.'' H.R. Rep. No. 98-618, 98th
Cong., 2d Sess. 18, reprinted in 1984 U.S. Code Cong. & Ad.
News 3038, 3055.

Explanation of How SSA Will Apply Akers Within The Circuit

This Ruling applies to title II disability cases and the title II portion
of concurrent title II and title XVI disability cases in which a fee
petition is filed in a court within the Sixth Circuit (Kentucky, Michigan,
Ohio, Tennessee).

When a case involves: (l) A fee petition that has been filed in a federal
court based on proceedings on the issue of continuing entitlement to
disability insurance benefits and (2) a claimant who has received
continued benefits pursuant to section 2(e) of the 1984 Disability
Amendments or section 223(g) of the Act during any period considered in
the court's decision, SSA will consider both accumulated benefits and
continued benefits already paid to be ``past-due benefits'' within the
meaning of section 206(b)(1) of the Act.

SSA will not withhold funds from continued benefits to pay an attorney's
fee. SSA will pay the approved fee directly to the attorney from the
accumulated past-due benefits held by the Secretary, subject to the
maximum of 25 percent of the total past-due benefits amount (as defined by
the court, i.e., past-due benefits include both accumulated benefits and
continued benefits).

If the sum of accumulated past-due benefits which the Secretary certifies
for direct payment and any funds held in trust or escrow by the attorney
is less than the fee set by the court, SSA will advise the attorney to
seek payment of the balance of the authorized fee directly from the
claimant.
the court, i.e., past-due benefits include both accumulated benefits and
continued benefits).

If the sum of accumulated past-due benefits which the Secretary certifies
for direct payment and any funds held in trust or escrow by the attorney
is less than the fee set by the court, SSA will advise the attorney to
seek payment of the balance of the authorized fee directly from the
claimant.

[1] Although the district court
and the Sixth Circuit stated that the plaintiff elected to receive
``interim'' benefits pursuant to section 223(g) of the Social Security Act
(42 U.S.C. 423(g)), consistent with statutory language, SSA refers to
section 223(g) benefits as ``continued'' benefits.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_AR_AR_93_3_6. Check the current official text before relying on it. Not legal advice.