Girling v. Commissioner of Social Security

Filing 40

ORDER granting 39 Plaintiff's Uncontested Petition and Memorandum in Support for Reasonable Attorney Fees Pursuant to 42 U.S.C. § 406(b). Attorney's fees in the amount of $30,624.75 shall be awarded to Plaintiff's couns el pursuant to 42 U.S.C. § 406(b). The $6,281.73 awarded under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), is to be refunded to Plaintiff. The Clerk is directed to enter a judgment as to attorney's fees in the amount of $30,624.75 under 42 U.S.C. § 406(b). Signed by Magistrate Judge Carol Mirando on 6/27/2018. (DRS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEVEN GIRLING
Plaintiff,
v.

Case No: 2:16-cv-38-FtM-CM

CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Uncontested
Petition and Memorandum in Support for Reasonable Attorney Fees Pursuant to 42
U.S.C. § 406(b) filed on February 13, 2018. Doc. 39. Plaintiff’s counsel, Carol Avard,
requests an award of $30,624.75 in attorney’s fees pursuant to 42 U.S.C. § 406(b),
representing 25% of the balance of Plaintiff’s past-due Social Security disability
benefits. Doc. 39 at 1-2. For the reasons stated herein, the Petition is granted.
In March 2012, Plaintiff retained Ms. Avard’s firm to represent him on his yetto-be-filed claim for Social Security disability benefits. Id. at 3. Plaintiff’s claim was
denied by the Social Security Administration, and after a hearing in December 2013,
an Administrative Law Judge (“ALJ”) issued an unfavorable decision in July 2014.

Id. Plaintiff filed an appeal with the Appeals Council in August 2014, which issued
an unfavorable decision in December 2015. Id. Plaintiff then filed a Complaint in
this Court in January 2016; and on October 3, 2016, the Court granted the

Commissioner of Social Security’s (“Commissioner”) Unopposed Motion for Entry of
Judgment with Remand. Docs. 1, 26; see also Docs. 25, 39 at 3. Plaintiff had a second
hearing before the ALJ on October 2, 2017 and received a fully favorable decision on
December 12, 2017. Doc. 39 at 3-4. The ALJ awarded disability benefits for the
period of September 2012 through January 2018. Id. at 4. On January 16, 2018, the
Social Security Administration issued the Notice of Award demonstrating that
$122,496.00 in disability benefits was due to Plaintiff. Docs. 39 at 3-4, 39-2.
There are three statutory provisions under which attorneys representing
claimants in social security disability cases may be compensated: 42 U.S.C. § 406(a),
§ 406(b) and 28 U.S.C. § 2142(d) (the “EAJA”). Section 406(a) provides for fees for
work done before the Commissioner at the administrative level, paid out of the
claimant’s past-due benefits awarded, which is capped at 25% of the past-due benefits
or a lesser fixed amount.

42 U.S.C. § 406(a)(2)(A)(ii)(I)-(II).

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 the EAJA. 1 Fee awards may
be made under both the EAJA and § 406(b), but the claimant’s attorney must refund
to the claimant the amount of the smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789,
796 (2002). 2

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
Commissioner is not substantially justified. 28 U.S.C. § 2412(d)(1)(A).
1

The EAJA has a “Savings Provision” which “prevents attorneys from receiving
double recovery under both the EAJA and § 406(b).” Jackson v. Comm'r of Soc. Sec., 601 F.3d
1268, 1272 (11th Cir. 2010). Pursuant to the Savings Provision, attorneys who collect EAJA
and § 406(b) fees for the same work must refund the smaller of the two fees to their client.
2

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Plaintiff was awarded $6,281.73 in attorney’s fees under the EAJA (Docs. 33,
37). His counsel now seeks attorney’s fees pursuant to § 406(b), which provides, in
relevant part, as follows:
Whenever a court renders a judgment favorable to a claimant . . . 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.
42 U.S.C. § 406(b)(1)(A). The statute further provides that it is unlawful for an
attorney to charge, demand, receive, or collect for services rendered in connection
with proceedings before a court any amount in excess of that allowed by the court.

Id. § (b)(2). Accordingly, to receive a fee under this statute, an attorney must seek
court approval of the proposed fee, even if there is a fee agreement between the
attorney and the client. See Gisbrecht, 535 U.S. at 807. In Bergen v. Comm’r of

Social Security, 454 F.3d 1273, 1277 (11th Cir. 2006), the Eleventh Circuit held that
§ 406(b) “authorizes an award of attorney’s fees where the district court remands the
case to the Commissioner of Social Security for further proceedings, and the
Commissioner on remand awards the claimant past-due benefits.” Because Plaintiff
was awarded past-due benefits following remand, the Court may award attorney’s
fees under § 406(b). See id.
As noted, Plaintiff was awarded past-due disability benefits in the amount of
$122,496.00. Doc. 39 at 3. Ms. Avard timely filed the present Petition pursuant to

See id. at 1271, 1273 (observing that Savings Provision furthers the EAJA's purpose of
increasing “the portion of past-due benefits the successful Social Security claimant may
pocket” (citation and quotation marks omitted)).
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42 U.S.C. § 406(b) seeking an award of the balance of the 25%, $30,624.75, for
representation of Plaintiff before this Court. Id. at 1 Doc. 39 at 1-4; see also Doc. 391. In support of the Petition, Plaintiff provides the fee agreement between Ms. Avard
and Plaintiff, which states that Ms. Avard “may charge 25% of retroactive benefits
pursuant to [§] 406(b) subject to approval by the Court, representing work done before
the Federal Court.” Doc. 39-3. As noted, the Commissioner does not oppose Plaintiff’s
Petition for fees. Doc. 39 at 2. Petitioner recognizes she must refund to Plaintiff the
smaller fee if awarded fees under both the EAJA and § 406(b). Doc. 39 at 5.
Petitioner contends that the amount of the fee requested is reasonable under
§ 406(b) and Gisbrecht, 535 U.S. 789. “A fee pursuant to a contingency contract is
not per se reasonable.” McGuire v. Sullivan, 873 F.2d 974, 979 (7th Cir. 1989). The
contingency fee negotiated by the claimant and his counsel is not reasonable if the
agreement calls for fees greater than the twenty-five percent statutory limit, the
agreement involved fraud or “overreaching” in its making, the resolution of the case
was unreasonably delayed by the acts of the claimant’s attorney, or would provide a
fee “so large as to be windfall to the attorney.” Wells v. Sullivan, 907 F.2d 367, 372
(2d Cir. 1990); McGuire, 873 F.2d at 981. Finally, “because [§] 406(b) requires an
affirmative judicial finding that the fee allowed is ‘reasonable,’ the attorney bears the
burden of persuasion that the statutory requirement has been satisfied.” Gisbrecht,
535 U.S. at 807 n.17. The Commissioner is not opposed to the rate or the amount
sought. Upon review of the case, the Court finds that the amount is reasonable. 3 The
Although the Court reduced the attorney and paralegal hours when considering the
motion for attorney’s fees under the EAJA (Doc. 33), the Court has considered the hours spent
3

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fee is consistent with that agreed to by Plaintiff and is uncontested by the
Commissioner.
ACCORDINGLY, it is
ORDERED:
1.

Uncontested Petition and Memorandum in Support for Reasonable

Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 39) is GRANTED.
2.

Attorney fees in the amount of $30,624.75 are awarded to attorney Carol

Avard and may be paid directly to counsel.
3.

The $6,281.73 awarded under the EAJA (Docs. 33, 37) is to be refunded

to Plaintiff.
4.

The Clerk is directed to enter a judgment as to attorney’s fees in the

amount of $30,624.75 under 42 U.S.C. § 406(b).

when determining the reasonableness under § 406(b) and does not find such a reduction or
the same type of analysis to be controlling under § 406(b) and Gisbrecht. The Court has
reviewed the contingent fee agreement for reasonableness and finds it does not exceed 25%
of accrued benefits. The Court finds no reason to reduce the amount claimed, as the Supreme
Court has found to be appropriate by courts in some instances based on “the character of the
representation and the results the representative achieved.” See Gisbrecht, 535 U.S. at 808.
Instead, the character of representation and results achieved here support the requested
award, and the Commissioner does not oppose the award. Furthermore, there is no showing
of delay by Ms. Avard in this case, or other factors justifying a reduction. Instead, the Court
finds persuasive the opinions of other district courts in the Eleventh Circuit which primarily
focused on the contingency fee agreement when determining reasonableness. See e.g.,
Watterson v. Astrue, No. 3:06-cv-369-J-HTS, 2008 WL 783634, at *2 (M.D. Fla. Mar. 21, 2008)
(noting “the best indicator of the ‘reasonableness’ of a contingency fee in a social security case
is the contingency percentage actually negotiated between the attorney and client . . . .”);
McKee v. Comm’r, 6:07-cv-1554-Orl-28KRS, 2008 WL 4456453 at *5 (M.D. Fla. Sept. 30,
2008) (“[C]ourts should not convert contingent fee awards into hourly rate ‘equivalents’ and
apply standard lodestar approaches.”); Yarnevic v. Apfel, 359 F. Supp. 2d 1363, 1365 (N.D.
Ga. Feb. 18, 2005) (“The Court may also consider the hours the attorney spent representing
the claimant before the Court and the attorney’s normal billing rate for non-contingent fee
cases, but this data does not control the Court’s determination of the requested fee’s overall
reasonableness”).
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DONE and ORDERED in Fort Myers, Florida on this 27th day of June, 2016.

Copies:
Counsel of record

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