Vickery v. Commissioner of Social Security

Filing 33

ORDER granting 32 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 4/8/2016. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JERALD VICKERY,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 14-cv-926-CJP

ORDER
PROUD, Magistrate Judge:
This matter is before the Court on counsel’s Motion for Approval of
Attorney’s Fees Pursuant to 42 U.S.C. §406(b). (Doc. 32).
After this Court reversed and remanded pursuant to sentence four of 42
U.S.C. §405(g), the Commissioner granted plaintiff’s application for benefits.
The fee agreement between plaintiff and his attorney provided for a fee of 25%
of plaintiff’s past-due benefits. However, plaintiff’s Notice of Award failed to
recognize the authorized 25% attorney fee and no amount was withheld for the
direct payment of an attorney. See., Doc. 32, Ex. A.
42 U.S.C. §406(b)(1)(A) provides that the Court may allow a “reasonable
fee,” not in excess of 25% of the total of the past-due benefits. However, if the
Court approves such a fee, “no other fee may be payable or certified for
payment for such representation except as provided in this paragraph.” Ibid.
In practical terms, as plaintiff’s counsel recognizes, this means that, in the
event of an award under §406(b)(1), counsel must refund any amount
previously awarded under the Equal Access to Justice Act, 28 U.S.C.
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§2412(d)(1)(B).

Counsel represents that he will refund to plaintiff the EAJA fee

($7,500.00) that was previously awarded. See, Doc. 32, p. 5.
The Supreme Court has held that § 406(b)(1) controls, but does not
displace, contingent fee agreement in social security cases:
Most plausibly read, we conclude, § 406(b) does not displace contingentfee agreements 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.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
Having reviewed the circumstances presented here, including the time
and effort expended by counsel, the excellent result received by plaintiff, the
amount of the past-due benefits and the value of the projected benefits over
plaintiff’s expected life span, the Court concludes that $21,560.00 is a
reasonable fee here. The Court notes that plaintiff’s brief indicates the
Commissioner does not oppose counsel’s request. While the Commissioner has
no direct stake in the §406(b)(1) fee request, she “plays a part in the fee
determination resembling that of a trustee for the claimants.” Gisbrecht, 535
U.S. at 798, n. 6.
Wherefore, counsel’s Motion for Attorney Fees Pursuant to 42 U.S.C.
§406(b)(1) (Doc. 32) is GRANTED. The Court awards counsel a fee of
$21,560.00.
Counsel shall refund to plaintiff the amount previously awarded under
the EAJA, $7,500.00.
IT IS SO ORDERED.
DATED:

April 8, 2016.
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s/Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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