Ledlow v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OPINION AND ORDER GRANTING 17 MOTION for Attorney Fees as modified. It is ORDERED that attorneys fees in the amount of $6,150.00 be awarded to David M. Andres. Signed by Judge Virginia Emerson Hopkins on 11/4/2016. (JLC)

FILED
2016 Nov-04 PM 12:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
DWIGHT LEDLOW,
Plaintiff,
v.
CAROLYN COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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) Case No.: 6:14-CV-816-VEH
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MEMORANDUM OPINION AND ORDER
David M. Andres (“Mr. Andres”), attorney for Plaintiff Dwight Ledlow, has
moved for an award of attorney’s fees under 42 U.S.C. § 406(b) in the amount of
$15,000.00 for 16.4 hours of work. (Doc. 17 at 3). On October 27, 2016,
Defendant filed her response (doc. 19) to Plaintiff’s Motion, asserting that “the
amount Plaintiff’s attorney has requested is not reasonable and, if awarded, would
constitute a windfall.” (Doc. 19 at 2). The Court has undertaken its duty to
independently review the reasonableness of the fee 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.” 42 U.S.C. § 406(b)(1)(A). 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, the court
calculates 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 must 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.
The standard set out in Gisbrecht is a framework that has been subsequently
bolstered by Courts of Appeals.1 “[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

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Gisbrecht purported to resolve a circuit split over whether contingency agreements or
the lodestar method were the appropriate means of determining attorney’s fees under the Social
Security Act.
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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).
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. Sullivan, 873 F.2d 974, 981 (7th Cir. 1989) (prohibiting a
“windfall”); cf. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 559 (2010) (fee
shifting statutes do not exist to enrich counsel).
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

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F.2d 1192, 1195 (5th Cir. 1970).2 Contingent fees, in particular, “provide[] a
critical incentive for able 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 defense for
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 SocialSecurity 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 above-stated principles, the court finds a valid contingent fee
agreement set at or below the statutory maximum contingency. (See doc. 17 at 3).
Proceeding to step two, Mr. Andres included an itemization of the hours he
worked on the case, cumulating in a total of 16.4 hours. (Doc. 17-3). As for the
lodestar, $15,000.00 divided over 16.4 hours comes out to about $914.63 per hour.
(See Doc. 19 at 4). 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

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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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Security filings in this district. A rate of $250 per hour, multiplied by 16.4 hours,
totals $4,100.00. Taking account of the required enhancement for the uncertainty
of recovery, $6,150.00 appears to be a reasonable figure.
Accordingly, the motion is GRANTED as modified. It is ORDERED that
attorney’s fees in the amount of $6,150.00 be awarded to David M. Andres.
DONE this 4th day of November, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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