Hodge v. Commissioner of Social Security

Filing 28

REPORT AND RECOMMENDATIONS re 27 RICHARD A. CULBERTSON'S UNOPPOSED REQUEST FOR AUTHORIZATION TO CHARGE A REASONABLE FEE AND MEMORANDUM ON REASONABLE FEES PURSUANT TO 42 U.S.C. § 406(b). The Court recommends counsel be authorized to charge and collect from Claimant the sum of $13,072.25 and the Clerk be directed to close the case. Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen days from the date of it s filing shall bar an aggrieved party from attacking the factual findings on appeal. If the parties have no objection to this Report and Recommendation, they may promptly file a joint notice of no objection in order to expedite the final disposition of this case. Signed by Magistrate Judge Gregory J. Kelly on 9/28/2020. (HMK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
STEVEN GERALD HODGE,
Plaintiff,
v.

Case No: 6:13-cv-523-Orl-31GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

REPORT AND RECOMMENDATION
This cause came on for consideration without oral argument on the following motion:
MOTION:

RICHARD A. CULBERTSON’S UNOPPOSED REQUEST
FOR AUTHORIZATION TO CHARGE A REASONABLE
FEE AND MEMORANDUM ON REASONABLE FEES
PURSUANT TO 42 U.S.C. § 406(b) (Doc. No. 27)

FILED:

September 25, 2020

THEREON it is RECOMMENDED that the motion be GRANTED.
I.

BACKGROUND

On March 26, 2013, Claimant entered into a contingency fee agreement (the “Agreement”)
in which he agreed to pay his counsel and law firm twenty-five percent of the total past-due
benefits due to Claimant. Doc. Nos. 27 at 1; 27-1. On May 14, 2014, judgment was entered
reversing and remanding this case to the Commissioner of Social Security (the “Commissioner”)
for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Doc. No. 20. On May
28, 2014, Claimant moved for attorney’s fees under the EAJA. Doc. No. 21. On May 29, 2014,

this Court awarded $2,992.00 in attorney’s fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d) (the “EAJA”) to Claimant. Doc. No. 22.
On September 15, 2020, Claimant’s counsel received notice of Claimant’s award of past
due benefits, Claimant’s counsel calculates that twenty-five percent of that award is $16,064.25.
Doc. Nos. 27 at 2, 4; 27-2. On September 25, 2020, Claimant’s counsel filed an unopposed
motion for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b) (the “Motion”). Doc. No.
27. In the Motion, Claimant’s counsel requests a fee award of $13,072.25. Id. at 1. The amount
requested is twenty-five percent of past-due benefits, $16,064.25, minus the $2,992.00 counsel
received in attorney’s fees under the EAJA. Id. at 2, 4. The Motion is unopposed. Id. at 3.
II.

APPLICABLE LAW

Section 406(b)(1)(A) provides, in relevant part, as follows:
Whenever a court renders a judgment favorable to a claimant under
this subchapter who was represented before the court by an attorney,
the court may determine and allow as part of its judgment a
reasonable fee for such representation, not in excess of 25 percent
of the total of the past-due benefits to which the claimant is entitled
by reason of such judgment, and the Commissioner of Social
Security may, notwithstanding the provisions of section 405(i) of
this title, but subject to subsection (d) of this section, certify the
amount of such fee for payment to such attorney out of, and not in
addition to, the amount of such past-due benefits. In case of any such
judgment, no other fee may be payable or certified for payment for
such representation except as provided in this paragraph.
Id. The statute further provides that it is unlawful for an attorney to charge, demand, receive, or
collect for services rendered in connection with proceedings before a court any amount in excess
of that allowed by the court. See id.; § 406(b)(2). Accordingly, to receive a fee under this statute,
an attorney must seek court approval of the proposed fee, even if there is a fee agreement between
the attorney and the client. In Bergen v. Commissioner of Social Security, 454 F.3d 1273 (11th Cir.
2006), the Eleventh Circuit held that “§ 406(b) authorizes an award of attorney’s fees where the

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district court remands the case to the Commissioner of Social Security for further proceedings, and
the Commissioner on remand awards the claimant past-due benefits.” Id. at 1277. Since Plaintiff
was awarded past-due benefits following remand (see Doc. Nos. 27 at 2; 27-2), the Court may
award attorney’s fees under § 406(b). Culbertson v. Berryhill, 139 S. Ct. 517, 520-21 (2019).
III.

ANALYSIS
A. Fee Awards under § 406(b).

Counsel requests authorization to charge Claimant $13,072.25 in attorney’s fees. Doc. No.
27 at 1. Under the EAJA, Claimant was awarded $2,992.00 in attorney’s fees. Doc. No. 22. The
amount authorized under section 406(b) must be reduced by the EAJA award. See Jackson v.
Comm’r of Soc. Sec., 601 F.3d 1268, 1272 (11th Cir. 2010) (holding that district court erred in
increasing the fee awarded under § 406(b) and ordering the claimant’s attorney to refund the EAJA
award to the client, and instead, “the district court could have simply awarded [the attorney] the
difference between 25% of [the claimant’s] past-due benefits and the amount of the EAJA fee.”).
The $13,072.55 in attorney’s fees sought in this case reflects a deduction for the earlier EAJA
award.
B.

Reasonableness of Contingent Fee.

To evaluate an attorney’s petition under 42 U.S.C. §406(b), the Court must determine
whether the fee requested is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 809 (2002). The
“best indicator of the ‘reasonableness’ of a contingency fee in a social security case is the
contingency percentage actually negotiated between the attorney and client, not an hourly rate
determined under lodestar calculations.” Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990).
However, “[a] fee pursuant to a contingency contract is not per se reasonable.” McGuire v.
Sullivan, 873 F.2d 974, 979 (7th Cir. 1989).

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The contingency fee negotiated by Claimant and his counsel is not reasonable if the
agreement calls for fees greater than the twenty-five percent statutory limit, the agreement
involved fraud or “overreaching” in its making, the resolution of the case was unreasonably
delayed by the acts of the claimant’s attorney, or would provide a fee “so large as to be a windfall
to the attorney.” Wells, 907 F.2d at 372 (citing McGuire, 873 F.2d at 981; Rodriquez v. Bowen,
865 F.2d 739, 746 (6th Cir. 1989)). A contingency fee is more likely to be reasonable the greater
the risk that the claimant would not prevail. McGuire, 873 F.2d at 985 (“A finding of riskiness is
an essential one in granting a full twenty-five percent contingent fee award in a social security
case.”). Finally, “because section 406(b) requires an affirmative judicial finding that the fee
allowed is ‘reasonable,’ the attorney bears the burden of persuasion that the statutory requirement
has been satisfied.” Gisbrecht, 535 U.S. at 807 n.17.
In Yarnevic v. Apfel, 359 F. Supp. 2d 1363, 1365 (N.D. Ga. 2005), the Court applied the
following analysis:
In determining whether a fee sought under § 406(b) is reasonable,
the Court should look first to the contingent fee agreement and
should then consider, inter alia, the character of the attorney’s
representation and the results achieve. The Court may also consider
the hours the attorney spent representing the claimant before the
Court and the attorney’s normal hourly billing rate for noncontingent fee cases, but this data does not control the Court’s
determination of the requested fee’s overall reasonableness.
(Citations omitted.) Courts in the Middle District of Florida have adopted this analysis. See
McKee v. Comm’r of Soc. Sec., No. 6:07-cv-1554, 2008 WL 4456453, at *5 (M.D. Fla. Sept. 30,
2008); Whitaker v. Comm’r of Soc. Sec., No. 6:06-cv-1718, 2008 WL 4710777, at *2-3 (M.D. Fla.
Oct. 23, 2008).
Here, Claimant’s counsel spent at least 16 hours on Claimant’s case. Doc. No. 27 at 2. As
a result, the case was remanded for further proceedings, and Claimant was ultimately successful

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on his claim. Doc. Nos. 20; 27-2. The Agreement states that Claimant has agreed to pay attorney’s
fees equal to twenty-five percent of past-due benefits awarded to Claimant. Doc. No. 27-1.
After reviewing the Motion, the results obtained, and the Agreement, the Court finds an additional
award of $13,072.25 in attorney’s fees to be reasonable.
IV.

CONCLUSION

Accordingly, it is RECOMMENDED that the Motion (Doc. No. 27) be GRANTED as
follows:
1. Counsel be authorized to charge and collect from Claimant the sum of $13,072.25;
and
2. The Clerk be directed to close the case.
Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen days from the date of its filing shall bar an aggrieved party from
attacking the factual findings on appeal. If the parties have no objection to this Report and
Recommendation, they may promptly file a joint notice of no objection in order to expedite
the final disposition of this case.
RECOMMENDED in Orlando, Florida on September 28, 2020.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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