Smith v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER: it is ORDERED and ADJUDGED that, pursuant to the 42 USC 406(b), the 21 petition for attorney's fees be and is hereby GRANTED, to the extent that the Commissioner shall pay to the plf's attorney $8,106.56 of the amount previously withheld from the plf's past due benefits; In all other respects, the motions for attorney's fees be and are hereby DENIED. Signed by Honorable Judge Charles S. Coody on 10/29/2018. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
CHRISTOPHER LEE SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

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) CIVIL ACTION NO. 3:14cv1169-CSC
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(WO)
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MEMORANDUM OPINION and ORDER
On August 21, 2018, the plaintiff filed a petition for authorization of attorney fees (doc.
# 21) seeking an award of fees in the amount of $10,808.75. In her petition for fees, counsel
for Smith asserts that since December 2011, she spent “a total of 21.1 hours before this Court
representing the Plaintiff in connection with his claim” for Social Security disability benefits.
(Doc. # 20 at 2). Although the defendant does not object to an award of fees (doc. # 23), the
court must be satisfied that an award is reasonable.
The plaintiff entered into a contingency fee agreement with counsel in which the plaintiff
agreed to pay attorney’s fees in the amount of 25% of any past due benefits awarded to him.
(Doc. # 22, Ex. A). On November 24, 2014, the plaintiff sought review of the Commissioner’s
adverse decision in this court. (Doc. # 1, Compl.). 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

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Nancy A. Berryhill became the Acting Commissioner of Social Security on January 20, 2017.

Magistrate Judge. On May 16, 2016, the court remanded this case to the Commissioner for
further proceedings. (Docs. # 19 & 20).
On August 24, 2017, the plaintiff received a partially favorable decision and was
awarded past due benefits. (Doc. # 21, Ex. B). The Social Security Administration withheld
$16,808.75 from his past due benefits for payment of attorney’s fees. (Doc. # 21, Ex. C).
Plaintiff’s counsel received $6,000.00 for work performed at the administrative level pursuant
to 42 U.S.C. § 406(a). (Id). After deducting that amount, $10,808.75 remains for an award of
fees in this court pursuant to § 406(b).
While the United States does not oppose the award of fees, the court must
independently determine whether an award of attorney’s fees in the amount of $10,808.75 is
reasonable in this case. The plaintiff’s counsel asserts that she expended 21.10 hours
representing the plaintiff in this court which equates to an hourly rate of $512.26. In
Grisbrecht, the Supreme Court examined the question of attorney’s fees in conjunction with
contingency fee agreements in Social Security disability cases. Gisbrecht v. Barnhart, 535
U.S. 789, 794 (2002). Specifically, the Court held that Ҥ 406(b) does not displace contingentfee 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.” Id.
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

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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.
Gisbrecht, 535 U.S. at 808.
“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. The burden is on
plaintiff’s counsel to demonstrate the reasonableness of the requested fee. Id. Counsel is
seeking $10,808.75 in attorney’s fees for 21.10 hours of work over an eighteen month period.
Counsel asserts that the sum sought is reasonable, mainly because she “represents a large
number of claimants for Social Security benefits under contingency fee agreements.” (Doc. #
21 at 2, ¶ 5). Counsel provides the court no information regarding her experience in this court
or expertise in handling Social Security disability claims. While the court recognizes that
counsel secured a partially favorable decision for the plaintiff, the mere fact that she represents
many clients is insufficient to warrant such a hourly rate in excessive of $500.00 an hour.
Moreover, this court disapproves of attorneys billing an excessive amount of time for
particular tasks. In reviewing her bill, the court notes that counsel billed 3.5 hours for
“[p]reparation and submission of Appeal paperwork to the District Court.” (Doc. # 20, Ex.
D). The complaint in this case is a two page, six paragraph document. (Doc. # 1). The
motion to proceed in forma pauperis is a single paragraph with a form affidavit attached.
(Doc. # 2). Counsel further billed one hour for “[r]eceipt ordering (sic) granting Motion for
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IFP; prepare service documents for U.S. Marshall (sic).” (Doc. # 21, Ex. D). The court’s
order is three pages. (Doc. # 3). Counsel also billed 1.2 hours to review the Commissioner’s
answer which is a standard two page answer. See Doc. # 9. Thus, the court concludes that
counsel’s hours are excessive and unreasonable for these tasks. Consequently, court further
concludes that reducing the plaintiff’s request for fees by 25% is reasonable under the
circumstances of this case.
Accordingly, for the reasons as stated and for good cause, it is
ORDERED and ADJUDGED that, pursuant to the 42 U.S.C. § 406(b), the petition for
attorney’s fees (doc. # 21) be and is hereby GRANTED, to the extent that the Commissioner
shall pay to the plaintiff’s attorney $8,106.56 of the amount previously withheld from the
plaintiff’s past due benefits.
In all other respects, the motions for attorney’s fees be and are hereby DENIED.
Done this 29th day of October, 2018.

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

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