Patterson v. Social Security Administration Commissioner

Filing 20

ORDER granting 17 Motion for Attorney Fees.. Pursuant to 42 U.S.C. § 406(b), the Court approves the attorney's fees award in the amount of $7,404.63. Signed by Honorable Barry A Bryant on January 19, 2022. (mjm)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SHARON BETH PATTERSON
vs.

PLAINTIFF
Civil No. 2:17-cv-02087

KILOLO KIJAKAZI
Acting Commissioner, Social Security Administration

DEFENDANT

ORDER
Pending now before the Court is Plaintiff’s Motion for Authorization of Fees Pursuant to
42 U.S.C. § 406(b). ECF No. 17. Defendant responded to Plaintiff’s Motion. ECF No. 19.
Plaintiff has also filed an itemized statement of attorney hours. ECF No. 17-4. This matter is now
ripe for consideration.
1.

Background:
On May 22, 2017, Plaintiff appealed to the Court from the Commissioner of the Social

Security Administration’s (“SSA”) denial of her request for disability benefits. ECF No. 1. On
April 17, 2018, Plaintiff’s case was reversed and remanded to the SSA for further administrative
review. ECF No. 11-12.
After that remand, Plaintiff was awarded disability benefits. ECF No. 17. Plaintiff was
awarded $82,818.50 as past-due benefits. Id. Of that amount, Plaintiff’s attorney claims she is
entitled to $7,704.63 in attorney’s fees. Id. With the current Motion, Plaintiff’s counsel seeks that
entire amount. Id.
2.

Applicable Law:
Pursuant to 42 U.S.C. § 406(b)(1)(A), whenever a court renders a judgment favorable to a

claimant, that court is permitted to determine and to allow as part of its judgment a reasonable fee
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for the representation of the claimant before the court. This fee must not be in excess of 25 percent
of the total past-due DIB to which the claimant is entitled by reason of such judgment, and this fee
may be taken out of the amount of the Plaintiff’s past-due DIB. See id. However, a court is not
authorized to award attorney’s fees out of a claimant’s past-due SSI. See id.; Bowen v. Galbreath,
485 U.S. 74, 78 (1988) (holding that a court is not authorized to award past-due SSI benefits as
attorney’s fees under Section 406(b)).
Furthermore, a court is not authorized to approve a fee for time spent in the representation
of the Plaintiff at the agency level. See 42 U.S.C. § 406(b)(1). It is the Commissioner’s
responsibility to award the fees for any representation before an agency and such fees are not
awarded by the courts. See Pittman v. Sullivan, 911 F.2d 42, 46 (8th Cir. 1990) (holding that “the
matter of attorney’s fees for services performed at the administrative level is committed by §
406(b)(1) to the responsibility of the Secretary exclusively and such fees may not be awarded by
the courts”). Instead, a plaintiff’s attorney must petition the agency for these fees. See 42 U.S.C.
§ 406(a).
In determining the reasonableness of a requested fee, the Eighth Circuit previously
determined that the “lodestar” approach should be applied. See Cotter v. Bowen, 879 F.2d 359,
363 (8th Cir. 1989), abrogated by Gisbrecht v. Barnhart, 535 U.S. 789 (2002). The lodstar
approach for fee setting states that a reasonable fee is obtained by multiplying the number of hours
reasonably worked on a case by a reasonable hourly rate. Id. The United States Supreme Court
has, however, abrogated Cotter and held that the lodestar approach should not be used as the
standard for calculating reasonable attorney’s fees. See Gisbrecht v. Barnhart, 535 U.S. 789, 793
(2002).

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Instead, the United States Supreme Court held Section 406(b) instructs courts to use
attorney-client contingency fee agreements to determine the fees to be awarded. Id. at 808. Courts
should utilize these agreements in awarding fees because the court should not “override customary
attorney-client contingent-fee agreements.” Id. The court is, however, required to review the
reasonableness of fees yielded by a contingency fee agreement when awarding fees under Section
406(b). Id. (holding that Ҥ 406(b) instructs courts to review for reasonableness fees yielded by
those [contingency-fee] agreements”).
3.

Discussion:
Based upon her itemized bill, Plaintiff’s attorney spent 37.25 hours of work devoted to

representing Plaintiff before the district court. ECF Nos. 17. Pursuant to the contingency fee
agreement, Plaintiff’s attorney is entitled to 25 percent of past-due benefits, or $20,740.63. Id.
Plaintiff’s attorney has previously received a fee in the amount of $13,300.00 for work at the
administration level. ECF No. 17-2. This would leave a difference of $7,404.63 which represents
the remainder of the total 25 percent of back pay after payment of the 406 (a) fee for work before
the district court.
The total of $7,404.63 divided by the total number of hours requested of 37.25 for work
performed before the district court equals an hourly rate of approximately $198.78. Based upon
the experience of Plaintiff’s attorney and the contingency fee agreement between Plaintiff and her
attorney, this Court finds this is a reasonable hourly rate. See Gisbrecht, 535 U.S. at 793. Notably,
the Defendant does not object to the reasonableness of the requested fee. ECF No. 19, p. 4.
Therefore, the requested amount of $7,404.63 should be awarded.
Finally, Defendant notes the Motion “could be viewed as untimely.” ECF No. 19, p. 3.
Here, the SSA awarded fees pursuant to section 406(a) on September 27, 2021, and such Order
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was not received by Plaintiff’s counsel until October 4, 2021. ECF No. 17, p. 2 and exhibit 17-3.
The instant motion was filed twenty-nine (29) days later. 1 Accordingly, the Court finds the Motion
0F

was timely filed based on the fact Plaintiff counsel was not able to file a 406(b) petition prior to
receipt of approval of the fee petition for the 406(a) fee, which was not received until October 4,
2021.
4.

Conclusion:
The Plaintiff’s Motion for Authorization of Fees Pursuant to 42 U.S.C. § 406(b) (ECF No.

17) is GRANTED. Pursuant to 42 U.S.C. § 406(b), the Court approves the attorney’s fees award
in the amount of $7,404.63. This amount represents approximately 37.25 court-related hours at
an hourly rate of $198.78.
ENTERED this 19th day of January 2022.

Barry A. Bryant

/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

Defendant notes the Motion was filed 125 days after the notice of award was issued by the SSA on June
30, 3021 and suggests this may make the filing untimely. ECF No. 19, p. 3. Here it is clear Plaintiff’s
counsel could not file the instant Motion until the order on the request for 406(a) fees was entered,
otherwise counsel would not be able to determine what amount of fee, under her contingent fee
agreement, was left unpaid.
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