DE GALLARDO v. COMMISSIONER OF SOCIAL SECURITY

Filing 30

ORDER GRANTING 29 Motion for Attorney Fees. Plaintiff's counsel is awarded attorney fees in the amount of $41,336.50. The Defendant is directed to effectuate payment of Plaintiff's counsel's net fee of $33,574.90 under § 406(b) to Petitioner Sarah White Park, which accounts for the previously received $7,761.60 EAJA attorney fee award. Ordered by US DISTRICT JUDGE MARC T TREADWELL on 8/28/2024. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ELVIRA DE GALLARDO,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CIVIL ACTION NO. 5:18-cv-472 (MTT)

ORDER
Before the Court is Plaintiff Counsel's Motion for Attorney Fees pursuant to 42
U.S.C. § 406(b)(1). 1 Doc. 29. Petitioner Sarah White Park seeks an award of attorney
fees in the amount of $41,336.50 for services rendered in connection with the
successful representation of Plaintiff Elvira De Gallardo in this Social Security disability
appeal. Id. at 1. The motion is unopposed. For the following reasons, that motion (Doc.
29) is GRANTED.
I. BACKGROUND
On December 31, 2018, Plaintiff filed this action seeking review of the Social
Security Administration's denial of disability benefits. Doc. 1. On October 24, 2019,
United States Magistrate Judge Charles H. Weigle recommended that the
Commissioner’s decision to deny the Plaintiff’s application for disability benefits be

Under 42 U.S.C. § 406(b)(1), an attorney who successfully represents a Social Security claimant in
court may be awarded a reasonable fee, not to exceed 25% of the past-due benefits awarded to the
claimant.
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remanded for further review. Doc. 23. On November 20, 2019, the Court adopted the
recommendation without objection and, the next day, entered judgment in favor of
Plaintiff, remanding the case for further administrative proceedings. Docs. 24; 25.
Following remand, Plaintiff was awarded past-due benefits. Docs. 29-2; 29-3.
Plaintiff's counsel now moves for an award of attorney fees pursuant to 42 U.S.C.
§ 406(b)(1) in the amount of $41,336.50, “with instructions for the agency to process a
net attorney fee of $33,574.90 in accordance with agency policy.” Doc. 29 at 1.
II. LEGAL STANDARD
Under 42 U.S.C. § 406(b)(1), when a court renders a judgment favorable to a
claimant who was represented by an attorney, the court may award “a reasonable fee”
for such representation, not to exceed 25% of the total past-due benefits awarded to the
claimant. The fee must be reasonable, and the Court must ensure that the fee awarded
does not result in a windfall to the attorney. See Gisbrecht v. Barnhart, 535 U.S. 789,
807-08 (2002). Courts assess the reasonableness of the requested fee by considering
factors such as the quality of representation, the results achieved, and whether the fee
would represent a windfall to the attorney. Id.
III. DISCUSSION
The Court has reviewed the materials submitted by Plaintiff's counsel, including
the contingent fee agreement between Plaintiff and counsel and the total past-due
benefits awarded. Docs. 92-1; 92-2; 92-3. Plaintiff's counsel has timely filed a motion
requesting attorney fees in the amount of $41,336.50, which represents 25% of the total
past-due benefits awarded to Plaintiff. Docs. 92-1 at 1, 3-5; 92-2; 92-3. This amount is
within the 25% statutory cap imposed by 42 U.S.C. § 406(b)(1).

The Court has also considered the relevant factors, including the quality of
representation, the results achieved, and the amount of time expended by Plaintiff's
counsel. Here, the fee award requested by counsel falls within the 25% limit under §
406(b) and reflects counsel's fee agreement with Plaintiff. Docs. 29-1; 29-2; 29-3.
Plaintiff’s counsel also provided effective representation that resulted in a favorable
outcome for the Plaintiff, and the fee requested is commensurate with the time and
effort expended on the case. Docs. 26-1; 29-2; 29-3. Additionally, the fee requested
does not constitute a windfall to Plaintiff’s counsel. The effective hourly rate resulting
from the requested fee is reasonable in light of the complexity of the case and the
results achieved. Docs. 26-1; 29-2; 29-3; 29-4. The Court further notes that Plaintiff's
counsel assumed the risk of non-payment by taking the case on a contingency basis,
which too supports the reasonableness of the fee. Doc. 29-1. Thus, the Court finds
that the requested fee is reasonable under the circumstances.
Finally, it is noted that Plaintiff's counsel previously received an award of attorney
fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Docs. 27; 28.
When attorney fees are awarded under both the EAJA and 42 U.S.C. § 406(b), the
amount of the EAJA award must either be repaid to the claimant or offset from the fees
received under § 406(b). See Gisbrecht, 535 U.S. at 796; see also Jackson v. Comm'r
of Soc. Sec., 601 F.3d 1268, 1273-74 (11th Cir. 2010). Because the motion in this case
is unopposed, the Court will do as Plaintiff’s counsel requests and instruct the
Defendant “to effectuate payment of the net § 406(b) fee of $33,574.90” to Petitioner
Sarah White Park—which is $41,336.50 less the previously received $7,761.60 EAJA
attorney fee award. Doc. 29 at 9.

IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Attorney Fees (Doc. 29) pursuant
to 42 U.S.C. § 406(b)(1) is GRANTED. Plaintiff’s counsel is awarded attorney fees in
the amount of $41,336.50. The Defendant is directed to effectuate payment of Plaintiff’s
counsel’s net fee of $33,574.90 under § 406(b) to Petitioner Sarah White Park, which
accounts for the previously received $7,761.60 EAJA attorney fee award.
SO ORDERED, this 28th day of August, 2024.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT