Fox v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that Plaintiff's motion for an attorney fee of $15,230.75 pursuant to § 206(b) of the Social Security Act 28 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 $15,230.75 from Plaintiff's past-due benefits. Because the amount awarded as an attorney fee under the EAJA was less than the amount awarded under the Social Security Act, the EAJA attorney fee award totaling $7,000.00, currently held by plaintiff's counsel, Ms. Yvonne Marie Ernzen, shall be refunded to plaintiff. Signed by District Judge John W. Lungstrum on 10/11/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TODD A. FOX,
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.
28) 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 a fee in the
amount of $15,230.75 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, Ms.
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 is necessary.
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 Gisbrect 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.
Statute provides that when attorney fees are awarded under the Equal Access to
Justice Act (28 U.S.C. § 2412(d)) (EAJA) 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 49.5 hours of work representing plaintiff before this court since November
4, 2014. (Doc. 29, Attach. 1, pp.9-10). Counsel noted that an attorney fee of $7,000.00
was awarded pursuant to the EAJA, 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 had withheld $15,230.75 (25% of the past-due benefits) from her award to
Plaintiff, to apply to payment of counsel’s fee. Counsel requests an award of the portion
of past-due benefits withheld by the Commissioner as a fee, and recognizes that she must
also refund the $7,000.00 EAJA fee award to Plaintiff.
The Commissioner responded to Plaintiff’s motion, noting that she has no
objection to payment of the fee and asking that the court order counsel to refund the
EAJA fee to Plaintiff. (Doc. 30)
The court finds an attorney fee of $15,230.75 to be reasonable in the circumstances
of this case.
IT IS THEREFORE ORDERED that Plaintiff’s motion for an attorney fee of
$15,230.75 pursuant to § 206(b) of the Social Security Act (Doc. 28) 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 $15,230.75 from Plaintiff’s pastdue benefits. Because the amount awarded as an attorney fee under the EAJA was less
than the amount awarded under the Social Security Act, the EAJA attorney fee award
totaling $7,000.00, currently held by plaintiff’s counsel, Ms. Yvonne Marie Ernzen, shall
be refunded to plaintiff.
Dated this 11th day of October 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?