Tate v. Social Security Administration
MEMORANDUM AND ORDER granting 30 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 9/13/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEBORAH D. TATE,
Case No. 15-4870-SAC
NANCY A. BERRYHILL,
Acting Commissioner of
MEMORANDUM AND ORDER
On September 7, 2016, this court issued an order reversing
the decision of the Commissioner and remanding the case for
further hearing (Doc. 22).
On December 20, 2016, this court
approved an order for attorney fees under the EAJA in the amount
of $9,253.00 (Doc. 29).
On July 19, 2017, plaintiff received a notice of award from
the defendant (Doc. 31-1).
Plaintiff then filed a motion for
attorney fees under 42 U.S.C. § 406(b) (Doc. 30-31).
has no objection to the motion (Doc. 32).
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
On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
allow as part of its judgment a reasonable [attorney] fee ...
not in excess of 25 percent of the past due benefits.”
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).
Plaintiff and her attorney entered into a contingent fee
agreement whereby plaintiff agreed to pay her attorney 25% of
her retroactive disability benefits if she received an award of
benefits (Doc. 31-2).
Plaintiff received an award of past due
benefits; defendant withheld $$20,100.50 from the past due
benefits (25% of past due benefits) in case they need to pay
plaintiff’s legal counsel (Doc. 31-1).
seeks attorney fees of $20,100.50 (Doc. 30-31).
54 hours representing plaintiff in the district court action
The request thus represent an effective hourly
rate of $372.23 ($20,100.50 ÷ 54).
In the case of Grace v. Colvin, 2015 WL 7102292 at *1-2,
Case No. 12-1017-JWL (D. Kan. Nov. 13, 2015), the Commissioner
had withheld $28,077.65 (25% of the past-due benefits) from her
award to plaintiff, to be applied to payment of that fee.
Counsel’s agreement with plaintiff was for 25% of past-due
However, counsel only requested a fee of $17,000.00
for 39.35 hours of work.
This represented an hourly rate of
The court found that the attorney fee of $17,000.00
was reasonable in the circumstances of that case.
In the case of Russell v. Astrue, 509 F.3d 695, 696-697
(10th Cir. Jan. 31, 2013), the court found that an hourly rate of
$422.92 was not beyond the bounds of reasonable judgment or
permissible choice (this represented a reduction from an
effective hourly rate of $611 requested by counsel).
case of Brown v. Colvin, Case No. 12-1456-SAC (D. Kan. Sept. 20,
2016), the court found that an hourly fee of $307.64 was
In the case of Glaze v. Colvin, Case No. 13-2129-
SAC (D. Kan. July 15, 2015, Doc. 23), the court found that an
hourly fee of $293.00 was reasonable.
In the case of Sharp v.
Colvin, Case No. 09-1405-SAC (D. Kan. Jan. 13, 2015), the court
found that an hourly rate of $258.63 was reasonable.
case of Bryant v. Colvin, Case No. 12-4059-SAC (D. Kan. Dec. 23,
2014), the court found that an hourly rate of $418.28 was
In the case of Roland v. Colvin, Case No. 12-2257-
SAC (D. Kan. Dec. 23, 2014), the court found that an hourly rate
of $346.28 was reasonable.
In the case of Wulf v. Astrue, Case
No. 09-1348-SAC (D. Kan. May 30, 2012, Doc. 23), the court found
that an hourly fee of $321.01 was reasonable.
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.
In summary, hourly fees
ranging from $258.63 to $432.02 have been approved in the cases
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
The requested hourly rate by counsel is within the range of
the hourly fees approved in the above cases.
therefore finds that a § 406(b) fee of $20,100.50, which
represents an hourly fee of $372.23 (for 54 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. 30) is granted.
Plaintiff’s attorney is entitled to
$20,100.50 in fees under 42 U.S.C. § 406(b).
shall pay the fees from the amount she is withholding from
plaintiff’s past due benefits.
IT IS FURTHER ORDERED that plaintiff’s counsel shall refund
to plaintiff $9,253.00, which he received as fees under the
EAJA, after plaintiff’s attorney receives his $20,100.50 in
attorney fees from the Commissioner.
Dated this 13th day of September 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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