Bryant v. Social Security Administration, Commissioner of

Filing 28

AMENDED MEMORANDUM AND ORDER: granting 25 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 12/23/14 (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TINA BRYANT,
Plaintiff,
vs.

Case No. 12-4059-SAC

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

AMENDED MEMORANDUM AND ORDER
Plaintiff twice appealed final decisions of the
Commissioner that denied plaintiff disability insurance
benefits.

On both occasions, the decision of the Commissioner

was reversed and remanded for further hearing (Doc. 21).
Plaintiff’s case has been pending for over 9 years, since July
12, 2005 (Doc. 21 at 7).

After the 1st remand, the Court awarded

plaintiff $4,800.00 in attorney fees under the Equal Access to
Justice Act (Bryant v. Astrue, Case No. 09-4159-RDR, Doc. 23).
After the second remand, the Court awarded plaintiff $3,142.98
in attorney fees under the Equal Access to Justice Act (EAJA)
(Doc. 24).
On August 10, 2014, defendant found plaintiff disabled and
entitled to disability benefits beginning December 2005 (Doc.
25-1 at 2).

Plaintiff’s attorney has filed a motion for an

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award of attorney fees under 42 U.S.C. § 406(b) (Doc. 25).
Defendant filed a response, indicating that she has no objection
to plaintiff’s motion (Doc. 26).
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 (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.

Gisbrecht v. Barnhart, 535 U.S.

789, 807 (2002).
In exchange for representation in her case, plaintiff
agreed to pay her attorney, Donald Baker, 25% of the past-due
benefits, minus any EAJA fees awarded (Doc. 25-2).

Mr. Baker

seeks § 406(b) attorney fees of $17,525.75, or 25% of past-due
benefits (Doc. 25).

Counsel indicated that he spent a total of

41.9 hours on the civil litigation (Doc. 25-4).

The fee request

thus represents an effective hourly rate of $418.28.

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In the case of Vaughn v. Astrue, Case No. 06-2213-KHV, 2008
WL 4307870 at *2 (D. Kan. Sept. 19, 2008), the court found that
$344.73 was a reasonable hourly fee.

In Smith v. Astrue, Case

No. 04-2197-CM, 2008 WL 833490 at *3 (D. Kan. March 26, 2008),
the court approved an hourly fee of $389.61.

See Robbins v.

Barnhart, Case No. 04-1174-MLB, 2007 WL 675654 at *2 (D. Kan.
Feb. 28, 2007)(In his brief, the Commissioner noted that, in
interpreting Gisbrecht, courts have found reasonable fee amounts
ranging from $338.29 to $606.79 per hour).
The requested hourly fee by counsel is within the range of
the hourly fees approved in the above cases.

The court

therefore finds that a § 406(b) fee of $17,525.75, which
represents an hourly fee of $418.28 (for 41.9 hours) is a
reasonable fee in this case.
IT IS THEREFORE ORDERED that the motion by plaintiff’s
attorney for an award of attorney fees under 42 U.S.C. § 406(b)
(Doc. 19) is granted.

Plaintiff’s attorney, Donald Baker, is

entitled to $17,525.75 in fees under 42 U.S.C. § 406(b).

The

Commissioner shall pay the fees from the amount which she is
withholding from plaintiff’s past due benefits.
IT IS FURTHER ORDERED that plaintiff’s counsel, Donald
Baker, shall refund to plaintiff $7,942.98, which he received as
fees under the EAJA in 2011 and 2013, after plaintiff’s attorney

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receives his $17,525.75 in attorney’s fees from the
Commissioner.
Dated this 23rd day of December 2014, Topeka, Kansas.

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

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