Senne v. Astrue

Filing 28

MEMORANDUM OPINION AND ORDER directing that, pursuant to the 42 U.S.C. § 406(b), (1.) The petition for attorney's fees be and is hereby GRANTED to the extent that the contingent fee amount is reduced by (a) $5,300.00 for work at the ad ministrative level; (b) $2,343.75, the amount previously awarded under the EAJA; and (c) 50% of the amount requested. Counsel be and is hereby AWARDED $3,803.30 as a reasonable attorney's fee; (2.) The Commissioner shall pay to th e plaintiff's attorney $3,803.30 of the amount previously withheld from the plaintiff's past due benefits; and (3.) The Commissioner shall pay to the plaintiff $11,447.05 of the amount previously withheld from her past due benefits. Signed by Honorable Judge Charles S. Coody on 8/30/11. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOYCE J. SENNE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:09cv952-CSC
(WO)

MEMORANDUM OPINION AND ORDER
On June 20, 2011, plaintiff’s counsel filed a motion for approval of attorney’s fees
pursuant to 42 U.S.C. § 406(b) seeking $15,250.35 in attorney’s fees.1 (Doc. # 23).
According to plaintiff’s counsel, the Social Security Administration withheld $15,250.35
from the plaintiff’s award of past due benefits for payment of attorney’s fees which
represents 25 percent of the past due benefits awarded. (Doc. # 23, Pl’s Mot., at 1 fn. 1).
Plaintiff’s counsel requests the full amount withheld, $15,250.35, which is 25% of the
amount of past-due benefits. The plaintiff’s counsel was previously awarded $2,343.75 in
fees under the Equal Access to Justice Act (“EAJA”). Plaintiff’s counsel represents to the
court that he will refund to the plaintiff the amount of fees previously awarded to him under

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On June 14, 2010, the United States Supreme Court decided Astrue v. Ratliff, 130 S.Ct. 2521
(2010) in which the Court unambiguously held that attorney’s fees are awarded to the prevailing litigant, not
to prevailing litigant’s attorney. See also Reeves v. Astrue, 526 F.3d 732, 738 (11th Cir. 2008) (“attorney’s
fees are awarded to the prevailing party, not to the prevailing party's attorney.”). Consequently, it is the
plaintiff and not plaintiff’s counsel, who is seeking an award of attorney’s fees.

the EAJA. Ultimately, plaintiff’s counsel would receive $12,906.602 in fees pursuant to 42
U.S.C. § 406(b). The United States does not object to an award of fees but notes that the
amount requested results in an “hourly rate in excess of $800.00 per hour” for 18.75 hours
of work.3 (Doc. # 25).
The plaintiff applied for disability insurance benefits pursuant to Title II of the Social
Security Act, 42 U.S.C. §§ 401 et seq., alleging that she was unable to work because of a
disability. Her application was denied at the initial administrative level. The plaintiff then
requested and received a hearing before an Administrative Law Judge (“ALJ”). Following
the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent
request for review. The ALJ’s decision consequently became the final decision of the
Commissioner of Social Security (Commissioner).4 See Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986).
On February 16, 2009, the plaintiff entered into a contingency fee agreement with
counsel in which the plaintiff agreed to payment of attorney’s fees in the amount of 25
percent of any past due benefits awarded to her. (Doc. # 23, Ex. 3). On October 13, 2009,
the plaintiff sought review of the Commissioner’s adverse decision pursuant to 42 U.S.C. §§

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The Court has done the math for plaintiff’s counsel.

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The court has reduced the number of hours sought by 1 hour because time to prepare the fee
petition is not compensable under 42 U.S.C. § 406(b).
4

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

2

405 (g) and 1383(c)(3). (Compl., doc. # 1). Pursuant to 28 U.S.C. § 636(c)(1) and M.D.
Ala. LR 73.1, the parties consented to entry of final judgment by the United States Magistrate
Judge. On December 1, 2010, the court remanded this case to the Commissioner for further
proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
On April 28, 2011, the plaintiff was awarded past due disability benefits. The Social
Security Administration withheld $15,250.35 from her past due benefits for payment of
attorney’s fees.
Plaintiff’s counsel does not indicate that he has petitioned for an award of attorney’s
fees for work performed at the administrative level. See 42 U.S.C. § 406(a). Nonetheless,
this court cannot award fees for work performed at the administrative level.5 See Gisbrecht
v. Barnhart, 535 U.S. 789, 794 (2002); Gardner v. Mitchell, 391 F.2d 582, 583 (5th Cir.
1968).6 “The statute deals with the administrative and judicial review stages discretely; §

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42 U.S.C. 406(b) provides as follows:

Whenever a court renders a judgment favorable to a claimant under this subchapter who was
represented before the court by an attorney, the court may determine and allow as part of
its judgment a reasonable fee for such representation, not in excess of 25 percent of the total
of the past-due benefits to which the claimant is entitled by reason of such judgment, and
the Commissioner of Social Security may, notwithstanding the provisions of section 405(i)
of this title, but subject to subsection (d) of this section, certify the amount of such fee for
payment to such attorney out of, and not in addition to, the amount of such past-due benefits.
In case of any such judgment, no other fee may be payable or certified for payment for such
representation except as provided in this paragraph.
42 U.S.C. § 406(b) (emphasis added).
6

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.

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406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees
for representation in court.” Gisbrecht, 535 U.S. at 794. See also Rice v. Astrue, 609 F.3d
831 (5th Cir. 2010); McGraw v. Barnhart, 450 F.3d 493, (10th Cir. 2006).
This regime recognizes that the Commissioner and the courts operate in
different spheres. “The district court ... may consider only court-related
services in setting allowable fees for representation before it. On the other
hand, Congress has made it equally clear that the authority for setting fees for
representation in agency proceedings rests exclusively with the
[Commissioner].”
Rice, 609 F.3d at 834.
Thus, the court cannot award to the plaintiff’s attorney fees for work performed at the
administrative level. “[T]he court does not make fee awards for work at the agency level,
and the Commissioner does not make fee awards for work done before the court.” McGraw,
450 F.3d at 498.
At this juncture, Plaintiff’s counsel seeks payment of fees from this court pursuant to
42 U.S.C. § 406(b). Although counsel requested $15,250.35 in fees, because the court
cannot compensate him for work performed at the administrative level, the court subtracts
$5,300 which is the maximum amount authorized under 42 U.S.C. § 406(a). After deducting
the amount of fees which the plaintiff’s attorney can seek at the administrative level from the
request for fees in this court, $9,950.35 remains for an award of fees. Plaintiff’s counsel was
previously awarded $2,343.75 under the EAJA. Rather than require plaintiff’s counsel to
refund that amount to the plaintiff, the court offsets the award of attorney’s fees by that
amount. See Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1269 (11th Cir. 2010) (“We
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conclude that the attorney may offset the earlier award by making a corresponding reduction
to [her] 42 U.S.C. § 406(b) fee request.”). After the offset, the amount of attorney’s fees at
issue is $7,606.60.
The question for the court now is whether an award of attorney’s fees in the amount
of $7,606.60 is reasonable in this case. The plaintiff’s counsel asserts that he expended 18.75
hours representing the plaintiff in this court. A fee of $7,606.60, coupled with the previous
EAJA award of $2,343.75, results in a total award of $9,950.35 and an hourly rate of $530.68
for work performed in this court.
In Grisbrecht, the Supreme Court examined the question of attorney’s fees in
conjunction with contingency fee agreements in Social Security disability cases.
Specifically, the Court held that Ҥ 406(b) does not displace contingent-fee agreements as
the primary means by which fees are set for successfully representing Social Security benefits
claims in court. Rather § 406(b) calls for court review of such arrangements as an
independent check, to assure that they yield reasonable results in particular cases.” 535 U.S.
at 807. The contingency fee agreement in this case does not exceed the 25 percent ceiling
established by § 406(b). However, it is not sufficient for the court to simply accept 25
percent of past due benefits as a reasonable attorney fee.
Courts that approach fee determinations by looking first to the contingent-fee
agreement, then testing for reasonableness, have appropriately reduced the
attorney’s recovery based on the character of the representation and the results
the representation achieved.
Id. at 808.
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“Within the 25 percent boundary . . . the attorney for the successful claimant must
show that the fee sought is reasonable for the services rendered.” Id., at 807 (emphasis
added). The burden is on plaintiff’s counsel to demonstrate the reasonableness of the
requested fee. Id. Counsel is seeking $9,950.35 in attorney’s fees for 18.75 hours of work
over a fourteen month period. In Gisbrecht, the court noted that if the “benefits are large in
comparison to the amount of time counsel spent on the case, a downward adjustment is . .
. in order.” 536 U.S. at 808. The plaintiff’s counsel did not submit to the court his hourly
rate for non-contingent fee work, nor did counsel refer this court to any previous awards of
fees to him for similar work. Moreover, counsel has not argued, and the court does not find,
that this case presented any greater risk of loss than the typical Social Security disability case.
See McGuire v. Sullivan, 873 F.2d 974, 985 (7th Cir. 1989).7
The hourly rate of the award would equal $530.68. While this hourly rate is surely
not determinative of reasonableness, a comparison of this rate to what counsel would bill for
non-contingent fee work or has previously been awarded would be a legitimate indicator of
reasonableness. However, the court has nothing before it demonstrating that the amount
sought is reasonable. Plaintiff’s counsel does not even assert that the amount sought is
reasonable. (Doc. # 23 at 1).
Of course, the court’s judgment about reasonableness must itself be tempered by
Gisbrecht’s conclusion that Congress meant to “contain” and not “outlaw” lawful contingent

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Cited with approval in Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002).

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fee agreements. Justice Scalia’s observation that the Gisbrecht opinion does not provide a
framework for analysis underscores the difficulty in “making reasonableness determinations”
under Gisbrecht. While the Gisbrecht court notes that district courts perform this function
in a wide variety of contexts, the court does not give any context for making these decisions.
In the instant case, counsel expended 18.75 hours for which he claims fees in the amount of
$9,950.35. Although counsel is experienced in representing Social Security claimants, he
provides the court no evidence about how long he has been practicing law in general and
representing Social Security claimants in particular. Thus, the court cannot make a
determination about whether the amount of time counsel spends on a case will be less than
other lawyers who are not as experienced or skilled. Additionally, there is the lack of
evidence that this case was exceptional or that there was an increased possibility of loss.
Counsel provided the court with no information about the award of benefits on remand.
While that time is not compensable in this court, the information would be helpful to the
court to determine whether the case was simple or complex, contested or conceded. In short,
counsel has not met his burden of giving the court a framework within which to make a
reasonable determination. Consequently, the court concludes that counsel has failed to meet
his burden of establishing that payment of 25% of the past due benefits would be reasonable
under the circumstances of this case.
The court thus concludes that the contingent fee amount should be reduced by 50%
resulting in an award of $3,803.30. Counsel will be awarded $3,803.30, which coupled with

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the EAJA fee award, represents an hourly rate in the amount of $327.84 which the court
concludes is a reasonable attorney fee in this case in light of the hours of work performed
over the time period of counsel’s involvement. The court reiterates that this reduction is due
to counsel’s failure to meet his burden of demonstrating the reasonableness of an award of
25% of the past due benefits. Accordingly, it is
ORDERED and ADJUDGED that, pursuant to the 42 U.S.C. § 406(b),
1.

The petition for attorney’s fees be and is hereby GRANTED to the extent that

the contingent fee amount is reduced by (a) $5,300.00 for work at the administrative level;
(b) $2,343.75, the amount previously awarded under the EAJA; and (c) 50% of the amount
requested. Counsel be and is hereby AWARDED $3,803.30 as a reasonable attorney’s fee.
2.

The Commissioner shall pay to the plaintiff’s attorney $3,803.30 of the amount

previously withheld from the plaintiff’s past due benefits; and
3.

The Commissioner shall pay to the plaintiff $11,447.05 of the amount

previously withheld from her past due benefits.
Done this 30th day of August, 2011.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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