Robinson v. Social Security Administration

Filing 31

MEMORANDUM AND ORDER denying without prejudice 27 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 7/24/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERESA A. ROBINSON,
Plaintiff,
vs.

Case No. 15-7644-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER
On June 19, 2018, plaintiff filed a motion for attorney
fees under 42 U.S.C. 406(b) (Doc. 27-28).

Defendant filed their

response on June 27, 2018 (Doc. 30).
Plaintiff received notice of an award of disability
benefits on April 21, 2018 (Doc. 28-3 at 3).

Section 206(b) of

the Social Security Act (“SSA”), 42 U.S.C. § 406(b), provides
that “[w]henever a court renders a judgment favorable to a
claimant ... the court may determine and allow as part of its
judgment a reasonable [attorney] fee ... not in excess of 25
percent of the past due benefits.”

This provision allows the

Court to award attorney fees in conjunction with a remand for
further proceedings where plaintiff ultimately recovers past due
benefits.

Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 933

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(10th Cir. 2008).

Where plaintiff has agreed to a contingency

fee arrangement, the Court must review the agreement as an
independent check to assure that it yields a reasonable result
in the particular case.
807 (2002).

Gisbrecht v. Barnhart, 535 U.S. 789,

If the benefits are large in comparison to the

amount of time counsel spent on the case, a downward adjustment
is in order (reviewing courts should disallowing windfalls for
lawyers).

Id., 535 U.S. at 808.

The court finds numerous errors and questions connected
with this motion.

First, plaintiff’s motion states that the

agency withheld 25% of the past due benefits, which was
$37,668.50 (Doc. 28 at 2).

The Social Security Administration

indicates it withheld $37,668.50 (Doc. 28-3, Exhibit 3 at 1).
At one point, plaintiff’s counsel requests a fee in the amount
of $33,873.50 (Doc. 27 at 1; Doc. 28 at 4).

However,

inexplicably, plaintiff’s counsel at another point requests a
fee in the amount of $33,817.50 (Doc. 28 at 2).

Therefore, the

court cannot ascertain for what amount plaintiff’s counsel is in
fact seeking attorney fees.
Second, the Social Security Administration indicates that
they paid $6,000 to plaintiff’s attorney based on a fee
agreement, but are withholding the remainder ($31,668.50) for
possible payment of a fee the court may authorize (Doc. 28-3,
Exhibit 3 at 1).

The Administration also stated that, under the
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fee agreement, the representative cannot charge you more than
$6,000.00 for his or her work (Doc. 28-3, Exhibit 3 at 5).
Plaintiff’s counsel has failed to address whether they have
already been paid $6,000.00.

They have also failed to address

the language in the Administration notice that the
representative cannot charge you more than $6,000.00.
Defendant’s response also failed to address these issues.

The

court cannot rule on this motion until and unless both parties
address these issues.
Third, Gisbrecht states that the court may require
claimant’s attorney to submit a record of the hours spent
representing the plaintiff and a statement of the lawyer’s
normal hourly billing charge for non-contingent cases as an aid
to the court’s assessment of the reasonableness of the fee
yielded by the fee agreement.

122 S. Ct. at 808.

counsel submitted such an affidavit (Doc. 28-1).

Plaintiff’s
That affidavit

shows that counsel spent 41.75 hours on the case (Doc. 28-1 at
4).

However, when plaintiff’s counsel filed their reply brief

on the EAJA motion, they noted that they incorrectly totaled the
hours expended in the initial application at 41.75, when in fact
it was 43.75 hours.

Counsel also sought an additional 6.75

hours preparing the reply brief, for a total of 50.50 hours
(Doc. 25 at 10).

The court found that 40 hours was reasonably

expended by counsel, and awarded EAJA fees based on 40 hours of
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work performed (Doc. 26).

Thus, any award would need to reflect

the court’s earlier order that 40 hours was reasonably expended
by counsel in this case at the district court level.
For the reasons set forth above, the court will deny
plaintiff’s motion without prejudice.

However, when plaintiff’s

counsel refiles this motion, they will also need to take into
account this court’s rulings in Marie-Jones v. Berryhill, Case
No. 12-2652-SAC (D. Kan. April 5, 2017; Doc. 26), and Reynolds
v. Berryhill, Case No. 15-2676-SAC (D. Kan. Sept. 13, 2017; Doc.
26).

In Reynolds, counsel sought a § 406(b) award which

reflected an effective hourly rate of $587.78, and in MarieJones, counsel sought a § 406(b) award which reflected an
effective hourly rate of $474.78.

In both cases, the court

found those requests unjustifiably high, and reduced the
effective hourly rate in the § 406(b) award to an effective
hourly rate of $425.00 an hour.

Assuming that counsel is

seeking in the present motion an award of fees of $33,873.50,
for 40 hours of work reasonably expended, that would represent
an effective hourly rate of $846.84.

That amount is

unjustifiably high and will not be awarded in this case.

If

this motion is refiled, counsel’s motion should take into
account the case law in the 10th Circuit and in the District of
Kansas, and this court’s ruling in Reynolds and Marie-Jones.

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IT IS THEREFORE ORDERED that plaintiff’s motion for
approval of attorney fees (Doc. 27) is denied without prejudice.
A renewed motion by counsel shall address the issues raised in
this order.
Dated this 24th day of July 2018, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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