Maiben v. Astrue

Filing 34

ORDER granting 31 Motion for Attorney Fees and that Petitioner shouldreceive a reasonable fee in the amount of $4,877.25 under the Social Security Act. Signed by Magistrate Judge Sonja F. Bivins on 1/6/2016. copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES C. MAIBEN,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

CIVIL ACTION NO. 12-00080-B

ORDER
This action is before the undersigned Magistrate Judge
on a motion for attorney’s fees pursuant to 42 U.S.C. §
406(b) (Doc. 31) filed by Petitioner, Byron A. Lassiter,
Esq., counsel for Plaintiff, James C. Maiben, in connection
with his representation of Plaintiff on Plaintiff’s claims
before this Court for a period of disability, disability
insurance benefits, and supplemental security income, under
Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401

et

seq.,

consideration
opposition

and
of

1381

the

thereto

et

motion,

(Doc.

seq.
the

33),

(Doc.

31).

Commissioner’s

and

all

other

Upon
lack

of

pertinent

portions of the record, the undersigned concludes that the
motion

is

due

to

be

GRANTED

and

that

Petitioner

should

receive a reasonable fee in the amount of $4,877.25 under

the Social Security Act.
I. Findings of Fact
Petitioner,

Byron

A.

Lassiter,

Esq.,

was

hired

by

Plaintiff to represent him in connection with his claim
for a period of disability, disability insurance benefits,
and supplemental security income on July 7, 2010. (Doc. 31
¶

1).

The

Attorney

Fee

Agreement

entered

into

by

Plaintiff and his counsel in January 2012 provides,
in pertinent part, that if Plaintiff receives a favorable
decision

from

the

Social

Security

Administration

after

the decision of a federal court, Plaintiff will pay his
attorney a fee equal to 25% of all past-due benefits.
(Doc 31-3 ¶2, “FEE AGREEMENT- TITLE II and/or TITLE XVI”).
On September 30, 2013, this Court ordered that the
Commissioner’s
reversed

and

decision
remanded

denying
to

Plaintiff

sufficiently

benefits

explain

why

be
the

consultative examiner’s opinion that Plaintiff would need
to

alternate

positions

every

addressed. (Doc. 25, 26).

hour

was

rejected

or

not

Thereafter, on March 6, 2014,

the Court granted Plaintiff’s motion for attorney’s fees
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d) in the sum of $3,733.20.

(Doc. 22).

On June 25, 2014, following remand, an Administrative
Law

Judge

rendered

a

fully

favorable

2

decision,

finding

that Plaintiff is disabled and that he was entitled to
benefits
date.

commencing

August

(Doc. 31 ¶ 5).

10,

2008,

the

alleged

onset

Pursuant to Section 206 of the

Social Security Act, codified at 42 U.S.C. § 406, the
Administration

withheld

25%

of

Plaintiff’s

past-due

benefits in order to pay for approved attorney’s fees.
(Doc.

31-2).

received

According

approximately

Plaintiff

to

Petitioner,

$5,390.75

for

he

has

already

representation

of

before the Administration, and, based on the

information provided to Plaintiff by the Social Security
Administration in a letter dated December 6, 2015, the
Administration is withholding $4,877.25, which represents
the balance of the 25% of past-due benefits owed to the
Plaintiff.1 (Doc. 31 at 3; Doc. 31-2).
In

the

remainder

of

$4,877.25,

present
the

to

25%

be

under § 406(b).

petition,
of

awarded

Petitioner

Plaintiff’s
as

past-due

additional

(Doc. 31 at 4).

seeks

the

benefits,

attorney’s

fee

Petitioner asserts that

this request is consistent with the contingency agreement
that
that,

Plaintiff
once

he

executed

upon

reimburses

retaining

Plaintiff

1

Petitioner
the

amount

and
of

Based on these figures, twenty-five percent of Plaintiff’s
past-due benefits is $10,268.00. (Doc. 31-2).
Thus, the
total
amount
of
Plaintiff’s
past-due
benefits
is
$41,072.00.
3

attorney’s fees previously awarded by the Court under the
EAJA ($3,733.20), the attorney’s fees received will not
exceed the allowable 25% of past-due benefits awarded to
Plaintiff.
In response to Petitioner’s request, the Commissioner
states that he does not object to the requested fee but
agrees that an attorney who has received attorney’s fees
under both § 406 and EAJA must refund the lesser amount to
his client.

(Doc. 33 at 2).

II. Conclusions of Law
There
attorneys

are

three

representing

statutory
claimants

provisions
in

under

Social

which

Security

Disability cases may be compensated: 42 U.S.C. §§ 406(a)
and

406(b)

and

28

U.S.C.

§

2412(d).

Section

406(a)

provides the exclusive avenue for attorneys seeking fees
for work done before the Commissioner at the administrative
level.

The fees awarded under Section 406(a) are paid out

of the claimant’s past-due benefits awarded and are capped
at twenty-five percent of past-due benefits awarded or a
lesser fixed amount.

42 U.S.C. § 406(a)(2)(A) and (B).

For fees incurred representing claimants in federal
court, claimants and their attorneys may seek fees under
two statutory provisions, 42 U.S.C. § 406(b) and 28 U.S.C.
§ 2412(d).

Under Section 406(b), upon entry of judgment in

4

favor of a claimant, the Court may award a reasonable fee
for work performed before the Court, which are paid out of
the

claimant’s

past-due

benefits

awarded.

42

U.S.C.

§

406(b)(1)(A). Section 406(b) imposes a cap on the total
amount of fees that may be awarded, providing that a Court
may not award fees “in excess of 25 percent of the total of
the past-due benefits to which the claimant is entitled.”
42 U.S.C. § 406(b)(1)(A).
Section 406(b) thus “provides for contingent fees to
be charged to the client, with the amount to be set by the
district court subject to a statutory maximum.”

Watford

v. Heckler, 765 F.2d 1562, 1566 (11th Cir. 1985) (citation
omitted; emphasis in original); see Meyer v. Sullivan, 958
F.2d 1029, 1035 n.12 (11th Cir. 1992) (the total amount of
attorney’s

fees

that

may

be

awarded

under

the

Social

Security Act is limited to 25% of the past-due benefits
awarded).
The Supreme Court has held that Ҥ 406(b) does not
displace

contingent-fee

agreements

within

the

statutory

ceiling; instead, § 406(b) instructs courts to review for
reasonableness
Gisbrecht

v.

fees

yielded

Barnhart,

535

by
U.S.

those
789,

(“Congress has provided one boundary line:

agreements.”
808-09

(2002)

Agreements are

unenforceable to the extent that they provide for fees

5

exceeding

25

percent

of

the

past-due

Within the 25 percent boundary, as
case

acknowledge,

the

attorney

benefits.

petitioners
for

the

.
in

.

.

this

successful

claimant must show that the fee sought is reasonable for
the services rendered.”).
Courts that approach fee determinations by
looking first to the contingent-fee agreement,
then
testing
it
for
reasonableness,
have
appropriately reduced the attorney’s recovery
based on the character of the representation and
the results the representative achieved. . . .
If the attorney is responsible for delay, for
example, a reduction is in order so that the
attorney will not profit from the accumulation
of benefits during the pendency of the case in
court. . . . If the benefits are large in
comparison to the amount of time counsel spent
on the case, a downward adjustment is similarly
in order. . . .
In this regard, the court may
require the claimant’s attorney to submit, not
as a basis for satellite litigation, but as an
aid
to
the
court’s
assessment
of
the
reasonableness of the fee yielded by the fee
agreement,
a
record
of
the
hours
spent
representing the claimant and a statement of the
lawyer’s
normal
hourly
billing
charge
for
noncontingent-fee cases.
Id. at 808 (internal citations omitted).
In line with Gisbrecht, therefore, this Court need
begin with the contingency fee agreement and should only
reduce

the

amount

called

determination

that

adopting

approach,

this

this

for

by

amount

the
is

agreement

upon

unreasonable.

a
In

the Supreme Court rejected the

Eleventh Circuit’s adoption of the lodestar calculation of
6

fees in Kay v. Apfel, 176 F.3d 1322, 1323 (11th Cir. 1999)
in

favor

of

Circuits,

the

contingency

including

Sullivan, 907 F.2d

the
367,

fee

Second
371

approach

Circuit,

(2d

Cir.

in

1990)

of

other

Wells

v.

(district

courts must begin with the contingency fee agreement and
may

only

“reduce

the

amount

called

for

by

the

contingency agreement [] when it finds the amount to be
unreasonable”); see also Gisbrecht, 535 U.S. at 799, 80809.
By contrast, the EAJA permits a claimant to seek an
award of fees against the government for work that is done
before the Court if the claimant prevailed and the position
of

the

U.S.C.

Commissioner
§

is

2412(d)(1)(A).

not

substantially

The

EAJA

justified.

contains

a

28

Savings

Provision that provides that “where the claimant’s attorney
receives fees for the same work under both [406(b) and the
EAJA], the claimant’s attorney refunds to the claimant the
amount of the smaller fee.”

Jackson v. Commissioner of

Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010) (quoting 28
U.S.C. 2412 note).
This

Circuit

has

held

that

“the

aggregate

of

the

attorney’s fees awarded under § 406(a) and § 406(b) may
not

exceed

25%

of

the

claimant’s

past

due

benefits.”

Bookman v. Commissioner of Soc. Sec., 490 Fed. Appx. 314,

7

316 (11th Cir. 2012).

“As the total fee under Sections

406(a) and (b) cannot exceed 25% of the past-due benefits
and ‘double dipping’ under the EAJA is not allowed, the
Court generally needs to know the amount awarded under §
406(a) (if any), amounts paid under EAJA (if any), and the
total

amount

of

past

due

benefits

calculated

by

agency, in order to evaluate the § 406(b) motion.”
v.

Commissioner

of

Soc.

Sec.,

2014

U.S.

the

Bibber

Dist.

LEXIS

181660, *4 (M.D. Fla. Oct. 29, 2014), adopted by 2015 U.S.
Dist. LEXIS 14048, 2015 WL 476190, *4-5 (M.D. Fla. Feb. 5,
2015).
As

previously

provided

to

stated,

Plaintiff

Administration

(Doc.

based
by

31-2),

the
the

on

the
Social

total

information
Security
amount

of

Plaintiff’s past-due benefits is $41,072.00, and 25% of
that amount is $10,268.00.

(Doc. 31 at 2-3; Doc. 31-2).

The contingency agreements, which Plaintiff entered into
on January 27, 2012 contemplates attorney’s fees of as
much as 25% of the claimant’s past-due benefits following
a favorable decision after a federal court remand.
31-3 ¶ 2).

(Doc.

It is apparent to the Court that the amount

requested by Petitioner herein ($4,877.25), when combined
with

the

already

$5,390.75

received

by

for

administrative

Petitioner

8

from

the

attorney

fees

Administration

(Doc. 31 at 3; Doc. 31-2), does not exceed 25% of the
past-due benefits that Plaintiff has been awarded in this
case.

Moreover,

there

is

no

evidence

that

Petitioner

delayed this case in any manner, nor can the Court find
that the requested amount is so large as to be a windfall
to

Petitioner.

Given

the

length

of

Petitioner’s

relationship with the claimant and the favorable results
achieved

by

Petitioner

for

the

claimant,

the

Court

considers the requested amount reasonable.
III. Conclusion
Based
Petitioner

on

the

Byron

foregoing,
A.

the

Lassiter,

undersigned

Esq.,

to

authorizes

receive,

as

an

attorney’s fee pursuant to § 406(b) for services rendered at
the federal court level, the sum of $4,877.25.

This total

is equal to twenty-five (25%) percent of the total past-due
benefits
amount

awarded
previously

to

Plaintiff,
paid.

minus

the

Additionally,

administrative
Petitioner

is

directed to disburse to Plaintiff the sum of $3,733.20,
which was previously awarded pursuant to the Equal Access to
Justice Act (“EAJA”).
ORDERED this the 6th day of January, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

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