Rainey v. Commissioner of Social Security

Filing 33

ORDER granting 32 Plaintiff's counsel's motion for authorization to charge a reasonable fee pursuant to 42 U.S.C. 406(b). Signed by Magistrate Judge Philip R. Lammens on 2/8/2019. (AR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
DOROTHY ELIZABETH RAINEY,
Plaintiff,
v.

Case No: 5:17-cv-541-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
$10,295.92. 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. 32-1). Mr. Culbertson
represents that the Commissioner has no objection to the requested fees.
I.

Background
On August 13, 2018, this Court reversed and remanded the case to the Social Security

Administration for further proceedings. (Doc. 25). On November 2, 2018, the Court entered an
order awarding attorney=s fees to Mr. Culbertson under the Equal Access to Justice Act (AEAJA@)
in the sum of $3,187.83, representing 16.2 hours of attorney time for representing Plaintiff before
this Court. (Docs. 27, 31.) Subsequently, on remand, Plaintiff was awarded past due benefits in
the amount of $53,935.00. (Doc. 32-2). Pursuant to the fee agreement, the attorney fee payable
from Plaintiff’s past-due benefits is $10,295.92. This is 25% of the past due benefits—$13,483.75–
minus the previously awarded EAJA fees in the amount of $3,187.83.

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
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. 32-1). Moreover,
Mr. Culbertson submitted records showing that he and his associate spent at least 16.2 hours on

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this case before it was remanded, and it does not include time spent representing Ms. Rainey at the
administrative level. (Doc. 27). The full award of 25% of the withheld past due benefits B
$10,295.92 B would translate to an hourly award of $635.55. 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. 32) is due to be GRANTED. Section 406(b) fees are approved for Mr. Culbertson
in the sum of $10,295.92.
DONE and ORDERED in Ocala, Florida on February 8, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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