Walker v. Astrue

Filing 39

ORDER granting 35 Plaintiff's Motion for Attorney's Fees. By Chief Judge Marcia S. Krieger on 10/31/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 09-cv-00974-MSK
MICHAEL L. WALKER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant. 1

ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES

THIS MATTER comes before the Court of Plaintiff Michael L. Walker’s Motion for an
Award of Attorney Fees Under 42 U.S.C. § 406(b) (#35) (“Motion”). 2 Having considered the
same, the Court
FINDS and CONCLUDES that:
I.

Jurisdiction
For purposes of determining the instant motion, the Court exercises subject matter

jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 406(b).
II.

Background
Mr. Walker applied for disability insurance benefits pursuant to Title II of the Social

Security Act, 42 U.S.C. §§ 401-33. He commenced an action in the district court pursuant to 42
1

At the time Mr. Walker filed this appeal, Michael J. Astrue was the Commissioner of Social
Security. Carolyn W. Colvin is substituted as the Defendant in this action to reflect her
designation as Acting Commissioner of Social Security, effective February 14, 2013.
2

Mr. Walker also filed an Amended Motion For an Award of Attorney Fees Under 42 U.S.C. §
406(b) (#37). There is no substantive difference between these motions and the Court treats
them as a single request for attorney fees pursuant to 42 U.S.C. § 406(b).

U.S.C. 405(g) seeking judicial review of a decision by the Commissioner of Social Security
denying his application. The Commissioner filed a motion for voluntary remand for further
administrative review, which the district court granted. The district court also granted Mr.
Walker’s unopposed motion for Equal Access to Justice (“EAJA”) attorney’s fees in the amount
of $3,158.40. Mr. Walker’s counsel was awarded an additional $5,917.00 in attorney’s fees
pursuant to 42 U.S.C. § 406(a) for representation at the administrative level.
On remand, the Commissioner held a supplemental hearing before an ALJ. In a second
decision, Mr. Walker’s disability claim was again denied. Mr. Walker also appealed this second
decision, filing an action in this Court. Following oral argument, this Court reversed the
Commissioner’s decision and remanded the case to the Commissioner for further development of
the medical record and clarification and evaluation of a treating physician’s opinion. Mr. Walker
filed a second motion for an award of EAJA attorney’s fees (#28). The Court denied this motion
(#34), finding that the Commissioner’s position was substantially justified.
On remand, the Commissioner awarded Mr. Walker $103,057.00 in past due benefits.
Pursuant to a contingent fee agreement, Mr. Walker’s counsel asks this Court to approve an
award of attorney’s fees under 42 U.S.C. § 406(b) in the amount of $16,688.85. According to
the Motion, this amount is calculated by taking 25% of the disability award and subtracting those
fees already awarded. 3 The contingent fee agreement specifies that Mr. Walker will pay his
attorney 25% of the past-due benefits obtained. The Commissioner has asserted no position on
this request.

3

$103,057.00 x .25 = $25,764.25.
$25,764.25 – ($3,158.40 + $5,917.00) = $16,688.85.
2

III.

Issue Presented
The only issue before the Court is whether Mr. Walker’s counsel should be awarded

attorney’s fees in the amount of 25% of the benefits awarded, minus fees previously awarded
under the EAJA and 42 U.S.C. § 406(a).
IV.

Discussion
Title II of the Social Security Act provides:
Whenever a court renders a judgment favorable to a claimant under this
subchapter 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, 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. In case of any such judgment, no other fee may be payable or
certified for payment for such representation except as provided in this paragraph.

42 U.S.C. § 406(b)(1)(A). Any attorney’s fees awarded pursuant to this statute cannot exceed
25% of the past-due benefits recovered and any award must be reasonable. Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002). To determine a reasonable fee under § 406(b), a court does
not use the lodestar method. Instead, the claimant’s attorney “must show that the fee sought is
reasonable for the services rendered.” Id. A court should consider the results obtained, the
amount of time spent on the case, and the attorney’s expertise in determining whether the amount
of fees sought is reasonable. Having considered these factors and there being no opposition to
the motion, it is granted.
IT IS THEREFORED ORDERED that Mr. Walker’s Motion for an Award of Attorney
Fees Under 42 U.S.C. § 406(b) (#35) is GRANTED.

3

DATED this 31st day of October, 2013
BY THE COURT:

Marcia S. Krieger
United States District Judge

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