Keen v. Commissioner of Social Security

Filing 24

ORDER granting 23 Motion for Attorney Fees pursuant to 42 U.S.C. Section 406(b). Signed by Magistrate Judge Philip R. Lammens on 8/11/2017. (AR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JENNIFER MAE KEEN,
Plaintiff,
v.

Case No: 5:14-cv-601-Oc-PRL

COMMISSIONER OF SOCIAL
SECURITY
Defendant.

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
$2,113.00. (Doc. 23). 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. 23-1). Mr. Culbertson
represents that the Commissioner has no objection to the requested fees.
I.

Background
On March 21, 2016, this Court reversed and remanded the case to the Social Security

Administration for further proceedings. (Doc. 21). While the Court awarded attorney=s fees under
the Equal Access to Justice Act (AEAJA@) (Doc. 22), Mr. Culbertson represents that he did not
receive any of the award because the United States Treasury applied the entire amount to a debt
owed by Plaintiff. (Docs. 23-3). Subsequently, on remand, Plaintiff was awarded past due benefits
in the amount of $32,452.00. (Doc. 23-2). Pursuant to the fee agreement, the attorney fee payable

from Plaintiff’s past-due benefits is $8,113.00.1 However, Mr. Culbertson has further reduced the
requested fee to $2,113.00 because the Commissioner already awarded a fee for work done at the
administrative level in the amount of $6,000.00.2
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 Athe benefits awarded

1

This is 25% of the past due benefits—$8,113.00—minus the previously awarded EAJA fees in
the amount of $0.
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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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—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. 23-1.) Moreover,
Mr. Culbertson represents that he, his associate, and his paralegal spent at least 31.8 hours on this
case before it was remanded. (Doc. 23 at 2-3, Doc. 21 at 2). The full award of 25% of the withheld
past due benefits—$8,113.00—would translate to an hourly award of $255.13. 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. 23) is due to be GRANTED. Section 406(b)(1) fees are approved for Mr. Culbertson in the
sum of $2,113.00 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 August 11, 2017.

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Copies furnished to:
Counsel of Record
Unrepresented Parties

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