Schoenradt v. Commissioner of Social Security
ORDER granting 33 Uncontested Motion for Attorney Fees. The Court awards § 406(b) fees in the amount of $13,520.50. Upon receipt of these funds by Plaintiff's counsel, the Court directs Plaintiff's counsel to remit $4,349.98 to Plaintiff. Signed by Magistrate Judge Douglas N. Frazier on 7/29/2022. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No.: 2:17-cv-588-DNF
COMMISSIONER OF SOCIAL
Before the Court is the Uncontested Motion for Attorney Fees (Doc. 33) filed
on June 28, 2022. Plaintiff Alicia Schoenradt’s attorney Bill B. Berke requests the
Court award attorney’s fees pursuant to 42 U.S.C. § 406(b) in the amount of
$13,520.50 which represents less than 25% of the past-due benefits awarded in this
case. (Doc. 33, p. 2). Attorney Berke represents that the Commissioner has no
objection to the relief requested. (Doc. 33, p. 6). For the following reasons, the Court
grants the motion.
On February 22, 2019, the Court entered an Opinion and Order (Doc. 28),
reversing the decision of the Commissioner and remanding the action to the
Commissioner. A judgment was entered on February 25, 2019. (Doc. 29). The Court
awarded $4,349.98 in attorney’s fees under the Equal Access to Justice Act
(“EAJA”). (Doc. 31). Attorney Berke now seeks additional fees under 42 U.S.C. §
406(b) from Plaintiff’s past-due benefits. (Doc. 33). Specifically, Attorney Berke
requests an award of $13,520.50, which is less than 25% of the past-due benefits.
(Doc. 33, pp. 5-6). Upon receipt of these fees, Attorney Berke will return the EAJA
fees in the amount of $4,349.98 to Plaintiff. (Doc. 33, p. 5).
Title 42 U.S.C. § 406(b) allows the Court to award counsel for a successful
claimant fees for work performed before the Court. However, the fees must be a
“reasonable” amount and must not exceed twenty-five percent (25%) of the total
past-due benefits awarded to the claimant. 42 U.S.C. § 406(b); Coppett v. Barnhart,
242 F. Supp. 2d 1380, 1382 (S.D. Ga. 2002). Section 406(b) does not replace the
contingent-fee agreement between the client and counsel, but it does require the
Court to examine the agreement, the amount of fees, and make an independent
determination that the fees are reasonable for the results in a particular case.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
“An attorney cannot recover a fee for the same work under both EAJA and
§ 406(b) – both of which compensate the attorney for the attorney’s efforts before
the district court. If the court awards an attorney fee pursuant to both provisions,
then the attorney must refund to claimant the amount of the smaller fee, and a failure
to do so may be a criminal offense.” Jenkins v. Comm’r of Soc. Sec., No. 6:15-CV2134-ORL-31LRH, 2019 WL 1347934, *2 (M.D. Fla. Mar. 20, 2019), report and
recommendation adopted, No. 6:15-CV-2134-ORL-31LRH, 2019 WL 1330806
(M.D. Fla. Mar. 25, 2019) (citing 28 U.S.C. § 2412 note, Act of Aug. 5, 1985, Pub.
L. No. 99-80, § 3, 99 Stat. 183, 186; Gisbrecht, 535 U.S. at 796).
To determine the reasonableness of the requested fees, a court engages in a
three-step process. First, a court looks to the contingent-fee agreement and verifies
that it is reasonable. Gisbrecht, 535 U.S. at 808. Second, a court looks to see if the
attorney delayed the case, and third, a court looks to see if the benefits are large in
comparison to the amount of time counsel spent on the case. Id. A court may require
counsel to submit a record of the hours spent and counsel’s normal hourly billing
rate to aid the court in making its determination as to reasonableness. Id.
First, the Court reviewed the fee contract agreement and finds it comports
with 42 U.S.C. § 406(b) in that it allows a fee award equal to but not more than 25%
of the past-due benefits. (Doc. 33-3). Thus, the Court finds this agreement is
Second, the Court looks to see if counsel delayed this case. The Court finds
no evidence of delay. Lastly, the Court considers whether the benefits are large in
comparison to the amount of time counsel spent on this case. In this Court’s May
21, 2019 Order, the Court reviewed the number of hours expended in this case and
the hourly rate and found both to be reasonable. (Doc. 31). In conjunction with the
instant Motion, the Court reviewed: (1) the number of hours counsel expended and
the hourly rates; and (2) the attachments to the Motion. (Doc. 33-2, 33-4). After
consideration of these documents, the Court finds the fees requested by counsel are
reasonable. Thus, the Court determines an award of $13,520.50 is reasonable.1
Accordingly, it is hereby ORDERED:
The Uncontested Motion for Attorney Fees (Doc. 33) is GRANTED and the
Court awards § 406(b) fees in the amount of $13,520.50. Upon receipt of these funds
by Plaintiff’s counsel, the Court directs Plaintiff’s counsel to remit $4,349.98 to
DONE and ORDERED in Fort Myers, Florida on July 29, 2022.
Copies furnished to:
Counsel of Record
The Court questioned the timeliness of the motion and Plaintiff filed a Supplemental
Memorandum addressing that issue. (Doc. 35). The Court is satisfied that it need not address the
timeliness of the fee request because the Commissioner did not object to the request. MaldonadoRios v. Berryhill, No. 8:16-CV-218-T-AAS, 2019 WL 1014421, at *1, n.2 (M.D. Fla. Mar. 4,
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