Lambert et al v. Commissioner of Social Security

Filing 36

ORDER 30 Motion for attorney fees is carried pending final calculation of past due benefits and the issuance of a final Notice of Award by the Social Security Administration; granting 34 Motion to stay. Signed by Magistrate Judge Thomas B. Smith on 11/28/2011. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
SANDRA L. LAMBERT,
Plaintiff,
v.

Case No. 5:09-cv-172-Oc-TBS

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
ORDER
Before the Court are plaintiff’s counsel’s Motion for Court Approval of plaintiff and
plaintiff’s counsel’s April 9, 2009 and December 4, 2009 contingency fee contracts
(Doc. 30) and the Commissioner’s Motion to Stay ruling on plaintiff’s counsel’s Motion
for Court Approval (Doc. 34). Plaintiff’s counsel asks the Court to approve a
contingency contract between plaintiff and plaintiff’s counsel which provides for a 42
U.S.C. § 406(b)(1) fee of twenty-five percent (25%) of plaintiff’s past due benefits less
any administrative 406(a) and E.A.J.A. fees paid or expected to be paid to plaintiff’s
counsel. This calculates to a net award of $21,306.95 in attorney’s fees, which equals
twenty-five percent (25%) of plaintiff’s $95,331.00 in past due benefits for the time
period between October 2005 and June 2011 per the Social Security Administration’s
“Notice of Award” letter dated September 15, 2011, less the $2,525.80 previously paid
by the Commissioner to plaintiff’s counsel as an E.A.J.A. fee.
In its Motion to Stay, the Commissioner asserts that the Commissioner cannot
adequately respond to plaintiff’s request for § 406(b) fees because the final amount of
plaintiff’s past-due benefits has not been calculated. On September 15, 2011, the

Social Security Administration informed plaintiff that $23,832.75 was being withheld
from plaintiff’s past due benefits for payment of attorney’s fees. This Notice of Award
reflects plaintiff’s disability insurance benefits under Title II. (Doc. 30-1 at 1.) Plaintiff’s
case is a concurrent case involving benefits under both Title II and Title XVI. The final
computations of the amount of Supplement Security Income (“SSI”) benefits under Title
XVI were not made until September 29, 2011. The Commissioner therefore objects to
plaintiff’s attorney’s motion because the final amount of past due benefits has not been
determined.
The Court agrees that, because the final amount of plaintiff’s past due benefits
has not been determined, the September 15, 2011 Notice of Award does not reflect the
final amount that will be withheld for payment of attorney’s fees. Many factors are
considered in determining past due benefits, including the interaction between SSI
benefits under Title XVI and disability insurance benefits under Title II. The Court notes
that, although there is a possibility that the final amount of plaintiff’s past due benefits
might increase, there is also a possibility that the final amount of past due benefits
might decrease. The Court therefore does not find it is appropriate to rule on plaintiff’s
counsel’s motion for approval of the attorney’s fees prematurely because granting the
motion at this point could unfairly harm plaintiff if plaintiff’s counsel is awarded more
than 25% of the final past due benefits. Pursuant to § 406(b), plaintiff’s counsel is
entitled to no more than 25% of the past due benefits owed to plaintiff. Therefore, the
Court will stay these proceedings until the final amount of past due benefits and
withholdings has been calculated and a final Notice of Award is issued by the Social
Security Administration.
2

For the reasons above, the Commissioner’s Motion to Stay (Doc. 34) is due to be
GRANTED and plaintiff’s Motion for Approval of the Contingency Fee Contract (Doc.
30) is due to be CARRIED pending a final calculation of past due benefits owed to
plaintiff and the issuance of a final Notice of Award by the Social Security
Administration.
IT IS SO ORDERED.
ORDERED and ADJUDGED in Ocala, Florida on this 28th day of November,
2011.

Copies to all counsel.

3