Hennigh v. Social Security Administration, Commissioner
MEMORANDUM AND ORDER granting 27 Plaintiff's motion for an attorney fee of $5,526.70 pursuant to § 206(b) of the Social Security Act. Pursuant to 42 U.S.C. § 406(b)(1) the Commissioner shall pay Plaintiff's counsel the sum of $5,526.70 from Plaintiff's past-due benefits. Because counsel asserts she received no attorney fee under the EAJA and the Commissioner does not object or argue otherwise, there is no need to refund anything to Plaintiff. Signed by District Judge John W. Lungstrum on 03/07/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CONNIE L. HENNIGH,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
This matter is before the court on a motion for approval of an attorney fee (Doc.
27) (hereinafter 406B Mot.) pursuant to the Social Security Act, 42 U.S.C. § 406(b). The
Acting Commissioner of the Social Security Administration (hereinafter Commissioner)
does not object to award of the fee requested. The court GRANTS Plaintiff’s motion,
approving fees in the amount of $5,526.70 pursuant to the Social Security Act.
The Social Security Act provides for the payment of an attorney fee out of the past
due benefits awarded to a beneficiary. 42 U.S.C. § 406(b). The court has discretion to
On Jan. 20, 2017, Nancy A. Berryhill, became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure,
Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
approve such a fee. McGraw v. Barnhart, 450 F.3d 493, 497-98 (10th Cir. 2006).
However the court has an affirmative duty to allow only so much of the fee as is
reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 807-808 (2002); McGraw, 450 F.3d at
498; 42 U.S.C. § 406(b)(1)(A).
(1)(A) 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, . . . 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.
42 U.S.C. § 406(b)(1)(A) (emphasis added).
The Supreme Court, in Gisbrecht determined that a contingency fee agreement
within the twenty-five percent ceiling is allowed by § 406(b) of the Act, and that courts
may not use the “lodestar” method to establish a reasonable fee. Where there is a
contingency-fee agreement between plaintiff and her attorney, the court is to look first to
the agreement and then test the agreement for reasonableness. Gisbrecht, 535 U.S. at
807-08. In determining reasonableness, the Court suggested that courts should consider
such factors as the character of representation, the results achieved, whether the attorney
is responsible for any delay, and whether the benefits are large in comparison to the
amount of time counsel spent on the case. Id. 535 U.S. at 808. The Court noted that the
comparison of amount of benefits to time spent might be aided by submission of
plaintiff’s attorney’s billing record and normal hourly billing rate. Id.
The Equal Access to Justice Act (28 U.S.C. § 2412(d)) (EAJA) provides that when
attorney fees are awarded both under that statute and under § 206(b) of the Social
Security Act (42. U.S.C. § 406(b)) for the same work, “the claimant’s attorney refunds to
the claimant the amount of the smaller fee.” Pub. L. 99-80, § 3, 99 Stat. 186 (1985).
Here, Plaintiff’s attorney provided a statement of the time expended on Plaintiff’s
case, showing 38.5 hours of work representing Plaintiff before this court since March 9,
2015. (Doc. 27, Attach. 1, pp.24-26). Counsel asserts that an attorney fee of $7,096.71
was awarded by this court pursuant to the EAJA, but that the award was reduced to zero
because of partial payment of outstanding obligations owed by Plaintiff to the federal
government. (406B Mot. 2). She argues that her agreement with Plaintiff anticipated a
fee of 25% of past-due benefits as allowed by the Social Security Act, and that the
Commissioner withheld $11,776.70 (25% of the past-due benefits) from her award to
Plaintiff, to use for payment of counsel’s fee. (406B Mot. 1) (citing Attach. 1, pp.15-20
(Ex. B)). Counsel requests a fee of $5,526.70, recognizing that $6,250.00 was awarded
from the 25% of past due benefits to pay attorney fees for representation before the
Commissioner, and requiring no refund for the EAJA fee award which was credited to
Plaintiff’s account for payment of her federal obligations.
The Commissioner responded to Plaintiff’s motion, noting that she has no
objection to payment of the fee. (Doc. 28, p.1).
In accordance with the holding of Grisbecht, and after reviewing the record and the
parties’ submissions, the court finds an attorney fee of $5,526.70 to be reasonable in the
circumstances of this case.
IT IS THEREFORE ORDERED that Plaintiff’s motion for an attorney fee of
$5,526.70 pursuant to § 206(b) of the Social Security Act (Doc. 27) is GRANTED.
IT IS FURTHER ORDERED that pursuant to 42 U.S.C. § 406(b)(1) the
Commissioner shall pay Plaintiff’s counsel the sum of $5,526.70 from Plaintiff’s past-due
benefits. Because counsel asserts she received no attorney fee under the EAJA and the
Commissioner does not object or argue otherwise, there is no need to refund anything to
Dated this 7th day of March 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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