Orweller v. Commissioner of Social Security et al
Filing
25
ORDER granting 24 Motion for Attorney Fees. Mr. Culbertson's motion for authorization to charge a reasonable fee pursuant to 42 U.S.C. 406(b) (Doc. 24) is due to be GRANTED. Section 406(b)(1) fees are approved for Mr. Culbertson in the sum of $1,788.20 to be paid out of the Plaintiff=s past due benefits currently being withheld by the Social Security Administration. Signed by Magistrate Judge Philip R. Lammens on 12/19/2014. (SEJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
MARGARET SUZANNE ORWELLER,
Plaintiff,
v.
Case No: 5:12-cv-551-Oc-PRL
COMMISSIONER OF SOCIAL
SECURITY and SSA
Defendants.
ORDER
This matter is before the Court on the motion of Plaintiff’s counsel, Richard A. Culbertson,
for authorization to charge a reasonable fee pursuant to 42 U.S.C. §406(b) in the amount of
$1,788.20. In support of the motion, Mr. Culbertson has filed a signed fee agreement in which
Plaintiff acknowledges a 25% fee award of past due benefits. (Doc. 24-1). Mr. Culbertson
represents that the Commissioner has no objection to the requested fees.
I.
Background
On May 21, 2013, this Court reversed and remanded the case to the Social Security
Administration for further proceedings. (Doc. 20). On December 7, 2001, the Court entered an
order awarding attorney=s fees to Mr. Culbertson under the Equal Access to Justice Act (AEAJA@)
in the sum of $2,572.80, representing 4.2 hours of attorney time and 24 hours of paralegal time for
representing Plaintiff before this Court. (Docs. 22, 23.) Subsequently, on remand, Plaintiff was
awarded past due benefits in the amount of $36,092.00. (Doc. 24-2). Pursuant to the fee
agreement, the attorney fee payable from Plaintiff’s past-due benefits is $6,450.20.1 However,
Mr. Culbertson has further reduced the requested fee to $1,788.20 so that the total 406(a) fees paid
out of Plaintiff’s past due benefits ($4,662.00)(Doc. 24-2), the 406(b) fee ($1,788.20), and the
EAJA fee ($2,572.80) do not exceed 25% of Plaintiff’s past-due benefits.2
II.
Discussion
An attorney, as here, who successfully represents a Social Security claimant in court may
be awarded as part of the judgment Aa reasonable fee ... not in excess of 25 percent of the ... pastdue benefits@ awarded to the claimant. 42 U.S.C. ' 406(b)(1)(A). The fee is payable Aout of, and
not in addition to, the amount of [the] past-due benefits.@ Id. As required by Gisbrecht v.
Barnhardt, 535 U.S. 789, 808 (2002), courts should approach contingent-fee determinations by
first looking to the agreement between the attorney and the client, and then testing that agreement
for reasonableness. When called upon to assess the reasonableness of the award, a court should
balance the interest in protecting claimants from inordinately large fees against the interest in
ensuring that attorneys are adequately compensate so that they continue to represent clients in
disability benefits cases.
Gisbrecht, 535 U.S. at 805.
In making this reasonableness
determination, the Gisbrecht court highlighted several important factors including: (1) whether the
requested fee is out of line with the Acharacter of the representation and the results the
representation achieved;@ (2) whether the attorney unreasonably delayed the proceedings in an
attempt to increase the accumulation of benefits and thereby increase his own fee; and (3) whether
1
This is 25% of the past due benefits -- $9,023.00 – minus the previously awarded EAJA fees in
the amount of $2,572.80.
2
Section 406(a) governs fees for representation in administrative proceedings and
§406(b) governs fees for representation in court. The aggregate of 406(a) and 406(b) fees
charged against a claimant’s total past-due benefits awarded may not exceed the 25% cap. See
Bryan v. Colvin, No. 3:08-cv-432-J-34MCR, 2014 WL 6827277, at *3 (M.D. Fla. Dec. 3, 2014).
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Athe benefits awarded are large in comparison to the amount of time counsel spent on the case,@the
so-called Awindfall@ factor. Id. at 808. In these instances, a downward reduction may be in order.
Here, the Court finds that the requested attorney=s fees are reasonable. The requested fee
will not result in a windfall for counsel B i.e., that counsel is receiving compensation he is not
entitled to and that payment of the compensation would be unfair or detrimental to Plaintiff. In
this regard, Mr. Culbertson has submitted a signed fee agreement in which Plaintiff acknowledged
that counsel would receive 25% of all past due benefits awarded on appeal.
(Doc. 24-1.)
Moreover, Mr. Culbertson submitted records showing that he and his paralegal spent over 28 hours
on this case before it was remanded. (Doc. 22). The full award of 25% of the withheld past due
benefits B $9,023.00 B would translate to an hourly award of $319.96. The Court is satisfied that
this fee award is reasonable in comparison to the amount of time and effort Plaintiff=s counsel
expended on this case and given the risks in contingent litigation. See e.g., Vilkas v. Comm’r of
Soc. Sec., 2:03-cv-687-FTM-29DNF, 2007 WL 1498115 (M.D. Fla. May 14, 2007)(approving fees
translating to an hourly rate of $1,121.86).
Accordingly, for these reasons, and in the absence of any objection by the Commissioner,
Mr. Culbertson’s motion for authorization to charge a reasonable fee pursuant to 42 U.S.C.
406(b) (Doc. 24) is due to be GRANTED. Section 406(b)(1) fees are approved for Mr.
Culbertson in the sum of $1,788.20 to be paid out of the Plaintiff=s past due benefits currently
being withheld by the Social Security Administration.
DONE and ORDERED in Ocala, Florida on December 19, 2014.
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Copies furnished to:
Counsel of Record
Unrepresented Parties
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