Spencer v. Commissioner of Social Security

Filing 25

ORDER granting in part and denying in part 23 Motion for Attorney Fees. Signed by Magistrate Judge Thomas B. Smith on 5/9/2016. (JMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ELLEN ANN SPENCER,
Plaintiff,
v.

Case No: 6:13-cv-417-Orl-TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Pending before the Court is Richard A. Culbertson’s Supplemental Request for
Authorization to Charge a Reasonable Fee and Memorandum on Reasonable Fees
Pursuant to 42 U.S.C. § 406(b) (Doc 23). Upon due consideration, the motion is
GRANTED in part and DENIED in part.
After a court-ordered remand in this Social Security disability case, the
Commissioner of Social Security found Plaintiff Ellen Ann Spener disabled and awarded
her $43,412.50 in past-due benefits (Doc. 21-2). Based on the result, Mr. Culbertson
sought and was awarded $870 in attorney’s fees pursuant to 42 U.S.C. § 406(b) (Docs.
21, 22). On April 2, 2016, the Commissioner notified Plaintiff that her past-due benefits
were $56,913.90 (Doc. 23-2). Then, on May 8, 2016, the Commissioner notified Plaintiff
by letter that she is entitled to past-due benefits in the amount of $55,821. The
Commissioner explained that the previous notice showed a higher amount because it
included Plaintiff’s benefit for August 2015 which was not subject to attorney fee
withholding (Doc. 24-1). Twenty-five percent of the past-due benefits is $13,955.25, but
the Commissioner withheld only $9,102.25 for the payment of attorney’s fees (Id.). Of

the amount withheld, $6,000 has already been paid to Plaintiff’s representative for work at
the administrative level (Id.).
Plaintiff’s counsel, Mr. Culbertson, requests that the Court approve an award of
25% of the past-due benefits award less the $3,983.10 in attorney’s fees previously
awarded pursuant to the Equal Access to Justice Act, $870 in attorney’s fees previously
awarded and paid to him under § 406(b), and the $6,000 in fees paid at the administrative
level (Doc. 23 at 2). Mr. Culbertson’s motion was filed prior to the Commissioner’s May
8, 2016 letter adjusting the amount of past-due benefits. This explains why he seeks a
higher fee than the Commissioner believes is due. The Commissioner opposes the
motion on the basis that fees should be awarded based on 25 percent of the past-due
benefits indicated in the Commissioner’s May 8, 2016 letter. I agree that the award
should be based on the Commissioner’s most recent accounting.
Under 42 U.S.C. § 406(b), an attorney who secures a favorable result for his or her
client upon remand from federal court may petition the Court for a reasonable fee, not in
excess of 25 percent of the total past-due benefits to which the claimant is entitled. 42
U.S.C. § 406(b)(1)(A). In capping the fee at 25 percent, “Congress … sought to protect
claimants against ‘inordinately large fees’ and also to ensure that attorneys representing
successful claimants would not risk ‘nonpayment of [appropriate] fees.’” Gisbrecht v.
Barnhart, 535 U.S. 789, 805 (2002). “Within the 25% boundary … the attorney for the
successful claimant must show that the fee sought is reasonable for the services
rendered.” Id. at 807. In determining a reasonable fee award under § 406(b)(1)(A), the
Court should first look at the parties’ fee agreement. Id. at 808. The Court may also
consider the character of the representation, the results achieved, “[i]f the attorney is
responsible for delay,” or “[i]f the benefits are large in comparison to the amount of time

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spent on the case.” Id.
Plaintiff entered into a contingent fee agreement with Mr. Culbertson that provides
for him to receive “a fee of 25 percent of the total of the past-due benefits to which the
claimant is entitled” if the Court “renders a judgment reversing or remanding the
administrative decision denying benefits and claimant is ultimately awarded past due
benefits.” (Doc. 23-1). The agreement also provides that any award of attorney’s fees
under the EAJA “that are paid by the government and retained by Richard A. Culbertson
will be applied to reduce the amount of attorneys fees that would otherwise be due from
claimant’s past-due benefits.” (Id.). In light of the fee agreement and the ultimate award
of past due benefits, and considering § 406(b)(1) fees approved pursuant to contingent
fee arrangements in other Social Security cases, see e.g., Bibber v. Comm’r of Soc. Sec.,
No. 6:12-cv-1337-Orl-37DAB, 2015 WL 476190, at *6 (M.D. Fla. Feb. 5, 2015) ($24,386),
I find Mr. Culbertson’s fee request reasonable. See Bookman v. Comm'r of Soc. Sec.,
490 F. App'x 314, 316 (11th Cir. 2012) (“[T]he aggregate of the attorney's fees awarded
under § 406(a) and § 406(b) may not exceed 25% of the claimant's past due benefits.”);
Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1273 (11th Cir. 2010) (endorsing offset
procedure as an alternative to overpaying attorney and requiring attorney to remit EAJA
award to client).
Accordingly, upon due consideration, Mr. Culbertson’s motion is GRANTED in part
and DENIED in part. The Court approves Section 406(b) fees in the amount of
$3,102.15,1 to be paid out of Plaintiff’s past due benefits currently being withheld by the
Social Security Administration.

1

$55,821 * .25 - $3,983.10 - $6,000 - $870 = $3,102.15

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DONE and ORDERED in Orlando, Florida on May 9, 2016.

Copies furnished to Counsel of Record

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