Carey v. Commissioner of Social Security

Filing 25

ORDER: The Uncontested Petition and Memorandum in Support for Reasonable Attorney Fees Pursuant to 42 U.S.C. § 406(b) 24 is GRANTED. The Court awards Plaintiff's counsel $22,398.75 in attorney fees under 42 U.S.C. § 406(b). Signed by Judge Virginia M. Hernandez Covington on 2/8/2015. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN CAREY,
Plaintiff,
v.

Case No. 8:12-cv-2362-T-33EAJ

CAROLYN W. COLVIN, Acting
Commissioner of the United
States Social Security
Administration,
Defendant.
____________________________/
ORDER
This matter is before the Court on consideration of the
Uncontested Petition and Memorandum in Support for Reasonable
Attorney Fees Pursuant to 42 U.S.C. § 406(b) filed on February
6, 2015, by counsel for the Plaintiff. (Doc. # 24). The
Commissioner

does

not

oppose

the

relief

sought

in

the

Petition. (Id.). For the reasons that follow, the Court grants
the requested award of attorney fees.
I.

Background
Plaintiff initiated this action on October 17, 2012,

seeking review of a decision of the Commissioner denying
Social Security benefits. (Doc. # 1). On February 18, 2014,
Elizabeth A. Jenkins, United States Magistrate Judge, entered
a Report and Recommendation recommending that the decision of

the Commissioner denying benefits be reversed and the case be
remanded for further proceedings. (Doc. # 17). On March 10,
2014,

this

Court

adopted

Judge

Jenkins’

Report

and

Recommendation (Doc. # 18), and the Clerk entered a judgment
in favor of Plaintiff on March 11, 2014 (Doc. # 19).

Within

the Judgment, Plaintiff was advised that:
If Plaintiff ultimately prevails in this case upon
the remand to the Social Security Administration,
any motion for the attorney’s fees under 42 U.S.C.
§ 406(b) must be filed no later than thirty (30)
days after the date of the Social Security letter
sent to the Plaintiff’s counsel of record at the
conclusion of the Agency’s past due benefit
calculations stating the amount withheld for
attorney’s fees.
(Id.).

Thereafter,

Plaintiff

petitioned

for

an

award

of

attorney fees under the Equal Access for Justice Act (EAJA),
28 U.S.C. § 2412 (Doc. # 20), which this Court granted in the
amount of $5,748.52 (Doc. # 23).
After the remand, Plaintiff received an award of Social
Security benefits by an Administrative Law Judge (ALJ) in
September of 2014. (Doc. # 24 at 3). Following the issuance
of

the

ALJ’s

favorable

decision,

Plaintiff’s

counsel

explains:
The Social Security Administration processed the
favorable determination and issued a Notice of

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Award calculating the benefits due to the Plaintiff
on January 11, 2015.
Plaintiff and Petitioner entered into a written
agreement providing for a contingent fee of twentyfive percent (25%) of all past due benefits
awarded. The Court awarded back benefits to
Plaintiff for the period from November 2008 through
November 2014, for a total retroactive award to
Plaintiff of $89,595.00. The Social Security
Administration withheld 25% of the claimant’s past
due benefits in order to pay the approved
attorney’s fee. The requested fee of $22,398.75
represents 25% of the Title II past due benefits
payable to Plaintiff. This sum has been withheld
by the Social Security Administration for the
payment of attorney fees in this matter. Petitioner
has not received attorney fees under 42 U.S.C. §
406(a) for administrative work.
(Id.

at

3-4)

(internal

citation

omitted).

Accordingly,

Plaintiff’s counsel seeks $22,398.75, which represents 25% of
Plaintiff’s past-due Social Security disability benefits as
compensation for her work in federal court.
II.

Discussion
“Fees for representation of individuals claiming Social

Security old-age, survivor, or disability benefits, both at
the

administrative

level

and

at

court,

are

governed

by

prescriptions Congress originated in 1965.” Gisbrecht v.
Barnhart, 535 U.S. 789, 793 (2002) (citing 42 U.S.C. § 406).
“The

statute

review

stages

deals

with

the

discretely:

administrative
§

3

406(a)

and

governs

judicial
fees

for

representation

in

administrative

proceedings;

§

406(b)

controls fees for representation in court.” Id. at 794.
The Supreme Court has explained the operation of § 406(b)
as follows:
For proceedings in court, Congress provided
for fees on rendition of “a judgment favorable to
a claimant.”
The Commissioner has interpreted §
406(b) to “prohibit a lawyer from charging fees
when there is no award of back benefits.”
As part of its judgment, a court may allow “a
reasonable fee . . . not in excess of 25 percent of
the . . . past-due benefits” awarded to the
claimant. The fee is payable “out of, and not in
addition to, the amount of the past-due benefits.”
*

*

*

[Section] 406(b) does not displace contingentfee arrangements as the primary means by which fees
are set for successfully representing Social
Security benefits claimants in court. Rather, §
406(b) calls for court review of such arrangements
as an independent check, to assure that they yield
reasonable results in particular cases. Congress
has provided one boundary line: Agreements are
unenforceable to the extent that they provide for
fees exceeding 25 percent of the past-due benefits.
Within the 25 percent boundary . . . the attorney
for the successful claimant must show that the fee
sought is reasonable for the services rendered.
Courts that approach fee determinations by
looking first to the contingent-fee agreement, then
testing it for reasonableness, have appropriately
reduced the attorney’s recovery based on the
character of the representation and the results the
representative achieved. If the attorney is
responsible for delay, for example, a reduction is
in order so that the attorney will not profit from
the accumulation of benefits during the pendency of

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the case. . . . If the benefits are large in
comparison to the amount of time counsel spent on
the case, a downward adjustment is similarly in
order.
Id. at 795, 807-08 (internal citations omitted).
The Eleventh Circuit has held that “42 U.S.C. § 406(b)
authorizes an award of attorney[ ] fees where the 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.” Bergen v. Comm’r of
Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006).
Furthermore, as for cases in which EAJA fees have been
awarded to counsel before counsel seeks an award of fees under
§ 406(b), the Eleventh Circuit has noted that “the Supreme
Court

concluded

that

Congress

harmonized

awards

for

attorney’s fees under the EAJA with awards under § 406(b) by
requiring
claimant

the
the

claimant’s
amount

of

attorney
the

‘to

smaller

refun[d]

fee.’”

Id.

to

the

(quoting

Gisbrecht, 535 U.S. at 796).1
In this case, Plaintiff’s counsel’s requested award does
not

exceed

the

statutory

cap

1

imposed

by

Congress.

Counsel for Plaintiff indicates that “[i]n the event that
this Motion for 406(b) fees is approved, [counsel] will return
the EAJA fees previously awarded in this matter to the
Plaintiff.” (Doc. # 24 at 18).

5

Furthermore, there is no indication of any delay in this
matter attributable to Plaintiff’s counsel that would warrant
a

reduction

Commissioner

in

the

does

not

requested
oppose

fee
the

and,

notably,

requested

award

the
as

unreasonable. Thus, in accordance with many other courts
within the Eleventh Circuit, the Court finds Plaintiff’s
counsel’s requested fee of $22,398.75 to be reasonable. See,
e.g., Wysocki v. Comm’r of Soc. Sec., No. 6:06-cv-255-ORLKRS, 2008 WL 1897601 (M.D. Fla. Apr. 28, 2008) (awarding
$50,548.50, representing 25% of the accrued benefits awarded
to plaintiff less EAJA fees previously awarded); Watterson v.
Astrue, No. 3:06-cv-369-J-HTS, 2008 WL 783634, at *1 n.2 (M.D.
Fla. Mar. 21, 2008) (awarding $28,767.10, equal to 25% of
plaintiff’s total award of benefits, and instructing that
previously-awarded EAJA fees be refunded to plaintiff). The
Court

therefore

grants

Plaintiff’s

counsel’s

Uncontested

Petition and Memorandum in Support for Reasonable Attorney
Fees Pursuant to 42 U.S.C. § 406(b).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The Uncontested Petition and Memorandum in Support for
Reasonable Attorney Fees Pursuant to 42 U.S.C. § 406(b)
(Doc. # 24) is GRANTED.

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(2) The

Court

awards

Plaintiff’s

counsel

$22,398.75

in

attorney fees under 42 U.S.C. § 406(b).
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of February, 2015.

Copies: All Counsel of Record

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