Todd v. Astrue

Filing 29

MEMORANDUM OPINION AND ORDER entered GRANTING 27 Motion for Attorney Fees, and that Plaintiff's attorney be AWARDED a fee in the amount of $1,939.75 for his services before this Court. It is FURTHER ORDERED that Lassiter be allowed to RE TAIN $3,548.39, the amount previously awarded under EAJA, and that he pay Plaintiff $1,939.75, the sum representing the fee being awarded under § 406(b). Finally, it is ORDERED that Plaintiffs attorney be AWARDED the amount of $350.00, representing the Court filing fee, pursuant to the previous Order and Judgment, entered on March 3, 2010, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 10/24/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ROBERT E. TODD,

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commission of Social Security,
Defendant.

CIVIL ACTION 09-0318-M

MEMORANDUM OPINION AND ORDER
This action is before the Court on Plaintiff’s attorney’s
Petition for Authorization of Attorney Fees pursuant to 42
U.S.C. § 406(b) (Doc. 27) and Defendant’s Response (Doc. 28).
After consideration of all pertinent materials in the file, it
is ORDERED, without objection by the Government, that
Plaintiff’s attorney’s Motion be GRANTED; that Plaintiff’s
attorney, Byron A. Lassiter, be AWARDED a fee in the amount of
$1,939.75 for his services before this Court; that Lassiter be
allowed to RETAIN $3,548.39, the amount previously awarded under
EAJA; that Lassiter pay Plaintiff $1,939.75, the sum
representing the fee being awarded under § 406(b); and that
Lassiter be AWARDED the amount of $350.00, representing the
Court filing fee, pursuant to the previous Order and Judgment,
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entered on March 3, 2010 (Docs. 25-26).
Plaintiff hired Lassiter on August 22, 2006 to pursue his
claims for a period of disability, disability insurance
benefits, and Supplemental Security Income (see Doc. 27, p. 1).
Lassiter has provided an Agreement in which Todd agreed that
Lassiter would receive twenty-five percent of past-due benefits
paid to Plaintiff; a written contingent fee agreement was
executed by Plaintiff on June 12, 2009 (Doc. 27, Exhibit C).
For the past approximately five years and two months,
Counsel has prosecuted Plaintiff’s claims before both the Social
Security Administration (hereinafter SSA) and this Court,
commencing a civil action here on June 5, 2009 (Doc. 1).

On

November 9, 2009, the undersigned entered a Memorandum Opinion
and Order and Judgment in which the decision of the
Administrative Law Judge (hereinafter ALJ) was reversed and this
action remanded for further administrative proceedings (Docs.
17-18).

On remand, the ALJ rendered a fully favorable decision

on February 14, 2011, finding Plaintiff entitled to disability
benefits (see Doc. 27, pp. 2-3; see also Exhibit B).
On September 22, 2011, Plaintiff’s Counsel received a
Notice of Award from the SSA, stating that the amount of
$7,939.75, representing twenty-five percent of Plaintiff’s past2

due benefits, had been withheld for payment of authorized
attorney fees (Doc. 27, Exhibit B, p. 3).

Lassiter has received

$6000.00 in administrative attorney fees and now requests a fee
in the amount of $1,939.75 for his services before this Court;
together, these sums equal twenty-five percent of Plaintiff’s
past-due benefits.
On October 11, 2011, Lassiter filed the pending Motion,
requesting approval of a fee in the amount of $1,939.75 (Doc.
27).

Since filing this action on June 5, 2009, Counsel has

spent a total of 20.70 hours representing Todd before this Court
(Doc. 27, Exhibit A).

Defendant has provided no objection to

the requested fee (Doc. 28).
The Social Security Act provides that when a court renders
a favorable judgment to a Social Security claimant “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[.]”

42 U.S.C. § 406(b)(1)(A).

The fee

is payable “out of, and not in addition to, the amount of [the]
past-due benefits.”

Id.

Thus, the Act “provides for contingent

fees to be charged to the client, with the amount to be set by
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the district court subject to a statutory maximum.”

Watford v.

Heckler, 765 F.2d 1562, 1566 (11th Cir. 1985) (citations omitted)
(emphasis in original).
The Supreme Court, in Gisbrecht v. Barnhart, 535 U.S. 789,
805-07 (2002), concluded that Congress designed § 406(b) to
monitor fee agreements between Social Security benefits
claimants and their counsel.

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 claimants 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 only boundaries

made by Congress are that the fee cannot exceed twenty-five
percent of the total disbursement and that the “fee sought [be]
reasonable for the services rendered.”

Id.

The fee provided for in § 406(b) is in addition to that
provided in § 406(a) which states that the Commissioner may
award attorney’s fees to a successful claimant’s attorney for
work performed before the SSA.

Fees awarded pursuant to §

406(a) and § 406(b) are awarded in addition to any attorney’s
fee a claimant’s attorney may receive pursuant to EAJA, 28
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U.S.C. § 2412, if the Commissioner’s position before the Court
was not “substantially justified.”

Gisbrecht, 535 U.S. at 796.

In order to avoid a double recovery, a claimant’s attorney who
is awarded attorney’s fees under both § 406(b) and EAJA must
refund the lesser amount to his or her client.

Id.

The Gisbrecht Court did not set out the specific facts that
the district courts are to consider when reviewing fees yielded
by a contingent-fee agreement.

It did, however, point to the

following factors which may be considered in reviewing for
reasonableness:

(1) the character of representation; (2) the

result achieved by the attorney; (3) any delay caused by the
attorney; (4) the amount of benefits relative to the time spent
on the action such that the attorney receives a windfall; (5)
fraud or overreaching in making the agreement; and (6) a
requirement that the requested fee does not exceed twenty-five
percent of past-due benefits.

See Gisbrecht, 535 U.S. at 808.

After reviewing the fee petition and accompanying
documents, the Defendant’s response, and the guidance provided
by Gisbrecht and the opinions cited above, the Court finds that
Lassiter has diligently represented Plaintiff since June 5, 2009
in this Court and has been successful in obtaining past-due
benefits for Plaintiff.

There is no evidence that Lasssiter
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contributed to any undue delay in this action, either before the
Commissioner or this Court, nor evidence of any fraud or
overreaching in procuring or making the contingent-fee
agreement.

Plaintiff has signed a fee agreement in which he

agrees to the fee being requested by Lassiter.

The total fee

requested does not exceed twenty-five percent of past-due
benefits and comports with Plaintiff’s contingent-fee agreement
with his attorney.

The Court finds that the requested fee of

$1,939.75 is reasonable for the services rendered before this
Court.
By Memorandum Opinion and Order and Judgment entered on
March 1, 2010 (Docs. 21-22), the Commissioner was ordered to pay
Plaintiff’s Counsel $3,548.39 in fees pursuant to Equal Access
to Justice Act.

An Amended Opinion and Order, and the

corresponding Judgment, were entered on March 3, 2010, ordering
the Commissioner to pay Plaintiff’s Counsel $3,548.39 in fees,
plus $350.00 for a court filing fee, for a total of $3,898.39
(Docs. 25-26).

Plaintiff’s Counsel has informed the Court that

he never received the $350.00 and requests that that amount be
added to his total reimbursement (Doc. 27, p. 6 n.2); that
request is GRANTED.

In the instant Motion, Lassiter requests

the Court to include in its order a provision that he pay
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Plaintiff $1,939.75, the sum representing the fee awarded under
§ 406(b) (Doc. 27, pp. 6-7); this is the lesser amount awarded
under § 406(a) and § 406(b) and, as instructed by Gisbrecht,
needs to be returned to Todd to avoid Lassiter enjoying a double
recovery.
Therefore, it is ORDERED, without objection from Defendant,
that Plaintiff’s attorney’s Motion for Attorney’s Fees be
GRANTED and that Plaintiff’s attorney be AWARDED a fee in the
amount of $1,939.75 for his services before this Court.

It is

FURTHER ORDERED that Lassiter be allowed to RETAIN $3,548.39,
the amount previously awarded under EAJA, and that he pay
Plaintiff $1,939.75, the sum representing the fee being awarded
under § 406(b).

Finally, it is ORDERED that Plaintiff’s

attorney be AWARDED the amount of $350.00, representing the
Court filing fee, pursuant to the previous Order and Judgment,
entered on March 3, 2010 (Docs. 25-26).
DONE this 24th day of October, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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