Goodman v. Social Security Administration
ORDER granting 18 Motion for Attorney Fees. Mr. Throesch is entitled to an award of $12,612.50 for attorney's fees. Mr. Throesch shall refund to Plaintiff the earlier EAJA award of attorney's fees in the amount of $5,547.68. Signed by Magistrate Judge J. Thomas Ray on 6/18/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Social Security Administration
On July 17, 2014, the Court entered a Memorandum Order and Judgment
reversing the Commissioner’s decision and remanding this case for further
administrative proceedings. Docs. 13 & 14. On October 17, 2014, the Court entered
an Order awarding Plaintiff’s counsel $5,547.68 in attorney’s fees under the Equal
Access to Justice Act (“EAJA”). Doc. 17.
On remand to the Commissioner, Plaintiff prevailed. On May 6, 2015, the
Commissioner issued a Notice of Award, awarding Plaintiff $74,450.00 in past-due
benefits. Doc. 18-2. The Commissioner withheld 25% of that award, or $18,612.50,
“to pay an approved lawyer’s fee” for “his or her work on your Social Security claim.”
Id. at 2. According to the Notice, the Commissioner “[is] paying the lawyer from the
benefits we withheld,” presumably for services performed at the administrative level,1
Under 42 U.S.C. § 406(a), the Commissioner is authorized to award attorney’s fees for
representation at the administrative review level.
and “will continue to withhold the remainder, $12,612.60, [i]n case your lawyer asks
the Federal Court to approve a fee for the work that was done before the court.” Id.
On June 4, 2015, Plaintiff’s counsel, David Throesch, filed this Motion
requesting an award of attorney’s fees under 42 U.S.C. § 406(b) for his work
performed at the District Court level. Pursuant to their fee agreement,2 Mr. Throesch
seeks the full 25% contingency fee, $18,612.50, for 30.29 hours of court-related
representation. Doc. 18 at 2. Mr. Throesch acknowledges that, if he receives a §
406(b) attorney’s fee award, he will refund to Plaintiff the $5,547.68 previously
awarded under the EAJA. Id. Mr. Throesch also states that he has filed with the
Commissioner a request for fees under § 406(a) for work performed at the
administrative level. Doc. 18-3 at 8.
The Commissioner states that, although she is not the true party in interest and
thus takes no legal position as the appropriateness or reasonableness of counsel’s
request, the amount requested “would be a reasonable award.” Doc. 19.
When a Court “renders a judgment favorable to a claimant” in a Social Security
case, the Court is authorized to award “a reasonable fee for [the claimant’s attorney’s]
On October 6, 2010, Plaintiff entered into a contingent-fee agreement with Mr.
Throesch, agreeing that if his claim “proceed[s] past the [administrative] hearing level before it
is approved,” he would pay an attorney’s fee equal to “25% of past-due benefits” that were
awarded to him. Doc. 18-1.
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).
This fee is payable “out of, and not in addition to, the amount of such past-due
benefits.” Id. This provision does not displace contingent-fee agreements entered into
between a claimant and his attorney; rather, § 406(b) “calls for court review of such
arrangements as an independent check, to assure that they yield reasonable results in
particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). So long as the
contingent fee does not exceed twenty-five percent of the past-due benefits, the
attorney for the successful claimant must simply show that the fee sought is
“reasonable for the services rendered.” Id.
For the following reasons, the Court will allow a § 406(b) fee award of
First, the contingent-fee agreement with Mr. Throesch provides that any
awarded attorney’s fee will not exceed twenty-five percent of Plaintiff’s past-due
benefits. The amount withheld by the Commissioner is within the boundary set by §
406(b). Although Mr. Throesch requests the full 25% award of $18,612.50 for his
court-related work, the Eighth Circuit has held that the aggregate of fees awarded at
the judicial and administrative levels may not exceed twenty-five percent of past due
benefits. Davis v. Bowen, 894 F.2d 271, 273 & n.3 (8th Cir. 1989). As noted, the
Commissioner’s Notice of Award states that the Commissioner “[is] paying” Mr.
Throesch for his administrative work and is “continu[ing] to withhold the remainder,
$12,612.50[,] in case your lawyer asks the Federal Court to approve a fee for the work
that was done before the court.” Doc. 18-2 at 2-3. Accordingly, the Court concludes
that Mr. Throesch is only entitled to $12,612.50, the amount being retained by the
Commissioner to pay him for court-related work.
Second, $12,612.50 is a reasonable award for Mr. Throesch’s representation at
the judicial review stage. Plaintiff spent more than two years unsuccessfully pursuing
his claim for disability benefits through the administrative levels. He received a
favorable decision only after two more years of representation by Mr. Throesch, who
obtained a judgment reversing the Commissioner’s decision and remanding for further
proceedings, which were successful. While Mr. Throesch ultimately achieved success
for Plaintiff, counsel bore the risk that he would not win an award for his client and
thus would not be paid. It appears that no delay resulted from the representation, and
counsel’s itemization demonstrates that the time expended was reasonable. Doc. 15-1.
The Court acknowledges Mr. Throesch’s experience and history of representing Social
Under these circumstances, Plaintiff’s Motion for attorney’s fees under § 406(b)
will be granted in the amount of $12,612.50.
The Court previously awarded to Plaintiff, for the same court-related work,
attorney’s fees in the amount of $5,547.68 under the EAJA. Doc. 17. Mr. Throesch
concedes that he is obligated to refund to his client the lesser of the two awards.
Gisbrecht, 535 U.S. at 796 (fee awards may be made under both EAJA and § 406(b),
but claimant’s attorney must “refun[d] to the claimant the amount of the smaller fee”).
Finally, the Commissioner is directed to ensure that the combined amount of
the fees that Mr. Throesch receives pursuant to § 406(a) and § 406(b) does not exceed
the 25% contingency-fee amount withheld from Plaintiff’s past-due benefits.
IT IS THEREFORE ORDERED THAT:
Mr. Throesch’s Motion for Award of Attorney’s Fees Under 42 U.S.C.
§ 406(b), Doc. 18, is GRANTED.
Mr. Throesch is entitled to an award of $12,612.50 for attorney’s fees for
work at the District Court level under 42 U.S.C. § 406(b).
Mr. Throesch shall refund to Plaintiff the earlier EAJA award of
attorney’s fees in the amount of $5,547.68.
DATED this 18th day of June, 2015.
UNITED STATES MAGISTRATE JUDGE
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