When Can a Social Security Disability Lawyer Take More Than $7,200 of Your Backpay?

Social Security's attorney fee cap applies in most, but not all, disability claims.

By , J.D., University of Missouri School of Law
Updated by Diana Chaikin, Attorney (Seattle University School of Law)

Sometimes a disability case will require multiple hearings, an appeal to the Appeals Council, or even a trip to federal district court. These sorts of cases can drag on for many years and require a lot of work for disability attorneys. In these situations, lawyers can submit a fee petition with the Social Security Administration (SSA) to allow their fee to exceed the usual limit of $7,200.

Social Security Has Fee Limits on How Much a Disability Attorney Gets Paid

Social Security limits attorney fees to 25% of your back pay, up to $7,200—whichever is lower. While attorney fees are capped at $7,200, lawyers are often paid much less. (One survey showed that the average disability attorney fee is about $3,750).

Typically, the SSA withholds one-quarter of your past-due benefits and pays the money directly to your attorney.

With direct payment of fees, clients avoid the hassle of arranging payment for their lawyers, and attorneys get paid without needing to bill their clients and wait for the money. But in order to collect a direct payment from a client's back pay, attorneys must submit a fee agreement to Social Security. The fee agreement requires both attorney and client to agree to a contingency fee arrangement—meaning your lawyer doesn't get paid unless you win your case.

Fee agreements are often called "two-tier agreements" because they provide for two different scenarios:

  • You're awarded benefits at or before the hearing level. In this case, the regular fee structure (25% of backpay capped at $7,200) applies.
  • You're appealing an unfavorable hearing decision to the Appeals Council or federal court. Your lawyer can then submit a fee petition to the SSA instead of accepting the standard contingency fee.

Most standard fee agreements also contain a provision that an attorney may submit a fee petition to Social Security if they performed an unusually large amount of work on your case.

When a Lawyer May Be Able to Get Paid a Higher Fee

In a few situations, your attorney may be able to collect more in fees than the $7,200 cap. When this occurs, your lawyer needs to submit a fee petition and ask Social Security for permission to collect more than the maximum fee amount. Here are some examples:

  • You fired your attorney and hired a second attorney.
  • You were denied benefits at the disability hearing level and your lawyer appealed to the Appeals Council or to federal court.

Fee petitions are commonly required when a client switches lawyers, and the original attorney didn't "waive fees" (agree not to charge a fee) when the new attorney was hired. When this happens, the current disability attorney needs to file a fee petition with Social Security so that the fee can be split between the two attorneys. If both lawyers did a significant amount of work, Social Security may approve a fee higher than $7,200.

Even if you've kept the same attorney throughout the disability appeals process, once you reach federal district court, new rules apply. Federal courts don't have a fee limit, so your attorney fees will likely be more than $7,200. But you might be able to have the U.S. government pay your attorney fees under the Equal Access to Justice Act (EAJA). To learn more about EAJA fees, see our article on how much it costs to appeal a disability case to federal court.

Fee Petitions Let Social Security Know What Your Attorney Can Charge

A fee petition must contain an itemized list of the attorney's activities on the case. Your attorney will send the fee petition to Social Security after your case is complete, and will send a copy to you as well.

The SSA will approve the petition only if the attorney fees requested are reasonable. Reasonable fees are determined by factors such as:

  • how complex your case is
  • how much work your attorney put into it
  • your lawyer's level of experience, and
  • which level of appeal your case went to.

You can object to or comment on the fee petition if you wish.

Your Attorney Can Charge You for Expenses Related to Your Case

Out-of-pocket expenses aren't included in Social Security's fee limit. Disability attorneys often have to pay up-front costs to obtain medical records and get opinion letters from doctors. Some lawyers might charge you for these documents plus incidentals such as mileage, copying, and postal services. In a typical disability case, expenses such as these are usually around a few hundred dollars.

Your lawyer might ask you to sign an expense agreement separate from the usual contingency fee agreement, or the fee agreement might have a clause—a few sentences related to expenses—that describes what you'll pay for and what your attorney is responsible for. Because expenses aren't contingent on whether you win your disability claim, you might have to pay them even if you lose. Ask your lawyer about this before you sign the agreement.

Updated February 15, 2023

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