Fite v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION AND ORDER GRANTING 12 MOTION for Attorney Fees as modified. It is ORDERED that attorney's fees in the amount of $6,375.00 be awarded to Melissa D. Horner as set out herein. Signed by Judge Virginia Emerson Hopkins on 5/10/2016. (Attachments: # 1 Exhibit)(JLC)

FILED
2016 May-10 PM 03:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

MICHAEL ALLEN FITE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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) Case No. 5:11-CV-4001-VEH
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MEMORANDUM OPINION AND ORDER
Melissa D. Horner, attorney for Plaintiff Michael Allen Fite, has moved for an
award of attorney’s fees under 42 U.S.C. § 406(b) in the amount of $10,598.25. The
Commissioner takes no position on the motion, noting only that the court has an
“independent duty to review the reasonableness of the fee.” The court has undertaken its
duty and concludes that the fee is not reasonable. The motion is due to be GRANTED,
although the fee award will be reduced.
Subparagraph 406(b)(1)(A) provides that “[w]henever a court renders a judgment
favorable to a [represented] claimant . . .the court may determine and allow . . . a
reasonable [attorney’s fee], not in excess of 25 percent of the total of the past-due
benefits.” Where the claimant and his attorney have executed a contingent-fee agreement,
the Supreme Court has interpreted subsection 406(b) as requiring district courts to

conduct a two-step analysis. See Gisbrecht v. Barnhart, 535 U.S. 789 (2002). First
comes the simple step of calculating whether the requested award falls “within the 25
percent limit.” Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).
If so, the agreement is presumptively reasonable. In step two, the court is required to
consider whether “the fee sought is [actually] reasonable for the services rendered,”
Gisbrecht, 535 U.S. at 807, and, if not, the presumption is overcome. Where the
presumption is overcome, the court may award a fee that is reasonable in its judgment.
See id.
This standard is skeletal, see id. at 809 (Scalia, J., dissenting), but the Courts of
Appeals have put some meat on Gisbrecht’s bones.1 The lodestar figure, while not
dispositive, may be compared against the contingent fee award. Id. at 808. “[C]ourts may
reduce the requested fee if the representation has been substandard, if the attorney has
been responsible for delay, or if the benefits are large in comparison to the amount of
time the attorney spent on the case.” Jackson, 601 F.3d at 1271 (citation omitted).
Substandard representation, among other things, includes a complaint “submitted on
boilerplate pleadings,” where “no issues of material fact are present,” and where “no legal
research is apparent.” Rodriquez v. Bowen, 865 F.2d 739, 747 (6th Cir. 1989).
1

Given the year in which Gisbrecht was decided (2002), it may be more temporally
accurate to say that the Supreme Court stripped the flesh from the standards set forth by the
courts of appeals. Either way, Gisbrecht only really purported to resolve a circuit split over
whether contingency agreements or the lodestar were the appropriate means of determining
attorney’s fees under the Social Security Act.
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The reasonable fee reflects an enhancement, compared to the market rate for
similar work, based on the risk of non-payment, because “payment for an attorney in a
social security case is inevitably uncertain.” Wells v. Sullivan, 907 F.2d 367, 370–71
(2d Cir. 1990). On the other hand, the quality of counsel and hours expended are weak
factors for assessing an award’s reasonableness; they “bear little if any relationship to the
results [i.e., award amount] achieved.” Rodriquez, 865 F.2d at 747. But the award must
not be so disproportionate to the work performed that it gives the perception that counsel
has won the Social Security lottery. McGuire v. Sulliv an, 873 F.2d 974, 981 (7th Cir.
1989) (prohibiting a “windfall”); cf. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542
(2010) (fee shifting statutes do not exist to enrich counsel); BMW of North America,
Inc. v. Gore, 646 So. 2d 619, 631 (Ala. 1994) (Houston, J., concurring specially), rev’d
on other grounds, 517 U.S. 559 (warning of the perception of the right to trial by jury
as “Alabama’s lottery”).
Certain policy considerations should also inform the court’s judgment. Section
406 was enacted “to encourage effective legal representation of claimants by insuring
lawyers that they will receive reasonable fees.” Dawson v. Finch, 425 F.2d 1192, 1195
(5th Cir. 1970).2 Contingent fees, in particular, “provide[] a critical incentive for able

2

This is binding authority in the Eleventh Circuit. See Bonner v. City of Prichard, Ala.,
661 F.2d 1206 (11th Cir. 1981) (decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981 are binding on all federal courts in the Eleventh
Circuit).
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attorneys to practice in the social security field.” Wells, 907 F.2d at 371. At the same
time, the court’s review is the only bulwark for impecunious and disabled claimants, see
Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273, 1276 (11th Cir. 2006), against the
gutting of their statutory entitlement by the “specialized Social-Security bar [that]
charges uniform contingent fees (the statutory maximum of 25%), which are presumably
presented . . . on a take-it-or-leave-it-basis.” Gisbrecht, 535 U.S. at 812 (Scalia, J.,
dissenting).
Applying the foregoing principles here, the court finds a valid contingent fee
agreement set at or below the statutory maximum contingency. (See doc. 12-1 at 1).
Proceeding to step two, Horner included an itemization of the hours she worked on the
case. The time Horner alleged to have spent on the case seemed excessive, so the court
has reduced the hours. (See doc. 15-1). The modified itemization is as follows:
Date

Activity

Time

11/22/11

Meeting with client to discuss Federal Appeal and completion
of necessary paperwork for Motion to Proceed IFP

2.5

11/23/11

Preparation and submission of Appeal paperwork to District
Court; letter to client regarding the same

1

11/23/11

Receipt and Review Order Re: Motion to Proceed IFP

.1

12/13/11

Receipt and Review notice of returned summons

.2

4/3/12

Receipt of Defendant’s Answer

1.8

4/3/12

Receipt and Review Briefing Letter

.1

4

5/10/12

Review of Transcript of Administrative Proceeding and
researched case law and social security rulings in preparation
of drafting Legal Memorandum in support of Plaintiff’s
position and preparation of Legal Memorandum in Support of
Plaintiff’s Position

5.6

5/17/12

Finalize Brief in Support of Plaintiff’s Position and filing of
the same

4.0

6/18/12

Receipt of Defendant’s Brief

.2

12/17/13

Converted the Plaintiff’s Reply brief to both PDF and
WordPerfect Formats. Electronically filed the PDF version
with the Court using the ECF systems. E-mail to Judge
Hopkins Chambers with the WordPerfect version. Letter to the
Client with a copy of the Reply Brief and explaining that the
briefing is concluded and that the case is submitted to Judge
Hopkins for decision.

1.5

TOTAL

17.0

She claims in the motion that she worked for 17.4 hours on this appeal, but the
supporting documentation suggests 21.3. Either way, the court finds that 17 hours is a
reasonable figure based on the activities described in the itemization. The November 23,
2011, entry pertaining to the filing of the complaint was reduced from 2.0 to 1.0 hours
because the complaint was very short—three pages. The next line, also November 23,
2011, was reduced from .4 to .1 hours because the forma pauperis order reviewed was
a one line margin order. The second April 3, 2012 entry, for the receipt and review of the
briefing letter, was reduced from .3 to .1 hours because it is a one page form letter from
the clerk of court. As to the entries from May 10 and May 17, 2012, the file in this case
had an extensive medical record, although the brief incorporated the ALJ’s recitation of
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facts, and two legal issues—failure to articulate good cause to disregard the physician’s
opinion and failure to correctly apply the pain standard—were raised, so the hours
alleged to have been spent drafting and filing the brief seem reasonable.
The June 8, 2012 entry for receipt of the defendant’s brief was reduced from 2.0
to .2 because the time record does not reflect that the brief was reviewed, and a reply
brief was not filed in the case. The December 17, 2013 entry was reduced from 2.5 to
1.5 based on the court’s sense about how long it would take to read the favorable opinion
at issue; the time would have been reduced further had the entry not indicated a
discussion with the client. Including the entries that were unaltered, this comes to 17
hours in total for this appeal.
Seventeen hours to complete a social security appeal is on the low end. As for the
lodestar, $10,598.25 divided over 17 hours comes out to about $623 per hour. This is
a windfall. The court is of the opinion that $250 per hour is a more accurate reflection
of the market rate in this district for this kind of work, and the plaintiff’s filings were
average quality compared to the social security filings in this district. The lodestar, at
$250 per hour, is $4,250. Taking account of the required enhancement for the
uncertainty of recovery, $6,375 appears to be a reasonable figure.
Accordingly, the motion is GRANTED as modified. It is ORDERED that
attorney’s fees in the amount of $6,375.00 be awarded to Melissa D. Horner.

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DONE this 10th day of May, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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