Hunter v. Astrue

Filing 32

CORRECTED MEMORANDUM OPINION AND ORDER entered that Petitioner to receive as an attorney's fee for services rendered in this Court the sum of $5,143.50 pursuant to 42 U.S.C. § 406(b). Petitioner's Motion to Correct Order and Judgment, (Doc. 31), which was filed on May 30, 2018, is MOOT. Signed by Magistrate Judge William E. Cassady on 5/31/2018. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBIN HUNTER,
Plaintiff,

:
:

v.

:

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1

:
:
:

Defendant.

Civil Action No. 2:12-cv-00077-C

:

CORRECTED MEMORANDUM OPINION AND ORDER
This cause is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule
54(d)(2)(D), Federal Rules of Civil Procedure, on the amended petition for
authorization of attorney’s fees pursuant to 42 U.S.C. § 406(b). (See Doc. 27). Upon
consideration of all pertinent materials contained in the file, it is determined
Petitioner should receive a reasonable fee in the amount of $5,143.50 under the
Social Security Act.
FINDINGS OF FACT
William T. Coplin, Jr., Esquire, has represented Hunter in connection with
her claim for disability insurance benefits. (See Doc. 1, ¶ 1). On October 3, 2011,
one hundred and thirty (130) days before the filing of the complaint in this Court,
Nancy A Berryhill is, now, the Acting Commissioner of Social Security. Pursuant to Rule
25(d), Federal Rules of Civil Procedure, Berryhill is substituted for Carolyn W. Colvin as
the proper defendant in this case.
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(see Doc. 1 (complaint filed February 10, 2012)), Hunter executed a fee agreement
wherein she agreed to the payment of an attorney’s fee equaling twenty-five percent
(25%) of all past-due benefits following a favorable decision of the Commissioner of
Social Security, (see Doc. 27-1, at 1 (“I, Robin Hunter, . . . hereby retain William T.
Coplin, Jr., Attorney at Law, to represent me in my claim for Social Security and/or
Supplemental Security Income (SSI) disability benefits, on the following terms: 1. I
will pay no fee at all unless I win my case. 2. I understand that all attorney fees in
Social Security cases are subject to the approval of the Social Security
Administration (SSA) and any fee my attorney charges or collects from me for his
services must be approved by SSA. 3. We agree that if SSA favorably decides my
claim at any stage through the first hearing at the Administrative Law Judge (ALJ)
level of appeal, I will pay my attorney a maximum fee of the lower of (a) 25% of
past-due benefits or (b) $6,000.00 or the applicable maximum amount set by the
Commissioner pursuant to 42 U.S.C. section 406(b).

4.

We agree that if SSA

favorably decides my claim at the Appeals Council level; or at the ALJ hearing level
after a decision by the Appeals Council or Federal Court; or if a Federal Court
favorably decides my case, I will pay my attorney a fee equal to 25% of all past-due
benefits in my Social Security and/or SSI disability claims, regardless of the
$6,000.00 limit.”).)
Following remand proceedings (see Doc. 20 (judgment remanding the case to
the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. §
405(g)), the Commissioner determined Plaintiff was entitled to disability insurance
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benefits on the basis that she has been disabled since her alleged disability onset
date of January 10, 2014. (See Doc. 27-2, at 31-32).
The amount of past-due disability insurance benefits the Social Security
Administration (the “Administration”) determined Hunter was entitled to receive
totals $44,574.00.

(Doc. 27-3, at 3).

The Administration withheld twenty-five

percent (25%) of Plaintiff’s past-due benefits, that is, $11,143.50, for payment of
authorized attorney’s fees (id.) and Petitioner petitioned the Administration for
$6,000.00, on or about May 20, 2018, for services rendered before it. (Doc. 27-4, at
1). Additionally, this Court awarded Petitioner, as the prevailing party in Plaintiff’s
Social Security appeal, attorney’s fees in the amount of $2,279.69 under the Equal
Access to Justice Act (“EAJA”), (see Docs. 24-25), which was applied to Hunter’s
federal debt, (Doc. 27-5).
Petitioner has submitted to this Court an itemized statement in regard to the
time spent before this Court pursuing Hunter’s claims. (Doc. 27-4, at 2-6). The total
time delineated therein is 36.40 hours. (Id., at 6)
Petitioner requests this Court to approve an attorney’s fee in the amount of
$5,143.50 for services rendered in court, which represents the remainder of 25% of
the past-due benefits to which the Administration has determined Hunter is
entitled under the Social Security Act, following subtraction of the $6,000.00 fee, for
which Petitioner petitioned the Administration for services rendered before it.
CONCLUSIONS OF LAW

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Section 206(b) of the Social Security Act, codified at 42 U.S.C. § 406(b), states
a court that renders a favorable judgment to a Social Security claimant may award
the claimant’s attorney a reasonable fee for his representation of the claimant “not
in excess of 25 percent of the total of past-due benefits to which the claimant is
entitled by reason of such judgment, and the Commissioner of Social Security may,
notwithstanding the provisions of section 405(i) of this title, but subject to
subsection (d) of this section, certify the amount of such fee for payment to such
attorney out of, and not in addition to, the amount of such past-due benefits.”2
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) (emphasis in original; citations
omitted); 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 fees yielded by those agreements.” Gisbrecht v. Barnhart, 535
U.S. 789, 808-09, 122 S. Ct. 1817, 1829, 152 L. Ed. 2d 996 (2002). As noted in
Gisbrecht, “Congress has provided one boundary line:

Agreements are

“When a claimant receives a favorable administrative decision following a remand of a
case by the district court to the [Commissioner], the district court may award attorney’s
fees pursuant to 42 U.S.C. § 406(b)(1).” Rohrich v. Bowen, 796 F.2d 1030, 1031 (8th Cir.
1986) (citation omitted).
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unenforceable to the extent that they provide for fees exceeding 25 percent of the
past-due benefits.3 . . . Within the 25 percent boundary, as petitioners in this case
acknowledge, the attorney for the successful claimant must show that the fee
sought is reasonable for the services rendered.”

Id. at 807, 122 S. Ct. at 1828

(internal footnote added).
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, 122 S. Ct. at 1828 (internal citations omitted).
In line with Gisbrecht, therefore, this Court will begin with the contingency
fee agreement and will only reduce the amount called for by the agreement upon a
determination that this amount is unreasonable. In adopting this approach, the
Supreme Court rejected the Eleventh Circuit’s adoption of the lodestar calculation
of fees in Kay v. Apfel, 176 F.3d 1322, 1323 (11th Cir. 1999) (rejecting the

“The prescriptions set out in § 406(a) and (b) establish the exclusive regime for obtaining
fees for successful representation of Social Security benefits claimants. Collecting or even
demanding from the client anything more than the authorized allocation of past-due
benefits is a criminal offense.” Gisbrecht, 535 U.S. at 795-796, 122 S.Ct. at 1822 (citations
omitted).
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“contingent fee” approach to calculation of attorney’s fees under § 406(b) in favor of
the “lodestar” approach), in favor of the contingency fee approach of other Circuits,
like that of the Second Circuit in Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990)
(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 Gisbrecht, supra, 535 U.S. at 799 & 808-09, 122
S. Ct. at 1823-24 & 1829.
The Social Security Administration has determined that the past-due
benefits, to which Plaintiff is entitled to receive, totals $44,574.00, (Doc. 27-3, at 3);
twenty-five percent (25%) of this amount is $11,143.50. The contingency fee
agreement that Hunter entered into on October 3, 2011, contemplates attorney’s
fees of as much as twenty-five percent (25%) of the past-due benefits awarded
claimant, (see Doc. 27-1, at 1), and it is clear to the Court the amount requested by
Petitioner herein ($5,143.50), when combined with the $6,000.00, for which
Petitioner petitioned the Administration for services rendered before it, (Doc. 27-4,
at 1), and without factoring the attorney’s fees in the amount of $2,279.69 that this
Court awarded under EAJA, (see Docs. 24-25), and was applied to Hunter’s federal
debt, (Doc. 27-5), is not more than 25% of the past-due benefits Hunter has been
awarded in this case. Moreover, Petitioner did not delay this case in any manner,
nor can the Court find 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 undersigned considers
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the requested amount reasonable. Accordingly, the Court authorizes Petitioner to
receive, as a fee for services rendered before this Court, the sum of $5,143.50 that,
when added to the $6,000.00, for which Petitioner petitioned the Administration for
services rendered before it, (Doc. 27-4, at 1), and without factoring the attorney’s
fees in the amount of $2,279.69 that this Court awarded under EAJA, and was
applied to Hunter’s federal debt, (see Docs. 24-25 & 27-5), represents 25% of the
total of past-due disability insurance benefits awarded to Plaintiff. See Jackson v.
Comm’r of Soc. Sec., 601 F.3d 1268, 1274 (11th Cir. 2010) (“Although an attorney
who receives fees under both the EAJA and 42 U.S.C. § 406(b) must refund the
smaller fee to his client, the attorney may choose to effectuate the refund by
deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. §
406(b) fee request.”).
CONCLUSION
The Court ORDERS Petitioner to receive as an attorney’s fee for services
rendered in this Court the sum of $5,143.50 pursuant to 42 U.S.C. § 406(b).4
DONE this the 31st day of May 2018.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

By entering this Corrected Memorandum Opinion and Order and accompanying
Judgment, Petitioner’s Motion to Correct Order and Judgment, (Doc. 31), which was filed
on May 30, 2018, is MOOT.
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