Shields v. Social Security Administration, Commissioner of

Filing 25

MEMORANDUM AND ORDER granting 23 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 10/3/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SALLY SHIELDS,
Plaintiff,
vs.

Case No. 15-1257-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
On April 15, 2016, this court issued an order reversing the
decision of the Commissioner and remanding the case for further
hearing (Doc. 18).

On July 26, 2016, this court approved an

order for EAJA fees under the EAJA in the amount of $4,234.58
(Doc. 22).2
On February 3, 2017, plaintiff received a notice of
decision-fully favorable from the defendant (Doc. 23-3), and a
notice of award on June 13, 2017 (Doc. 23-4).

Plaintiff then

filed a motion for attorney fees under 42 U.S.C. § 406(b) (Doc.
23).

Defendant filed a response to the motion indicating that

they have no objection to the motion (Doc. 24).

1

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
Of that amount, plaintiff’s counsel only received $3,528.19 because $706.39 of that amount was seized by the
government to pay a past debt of plaintiff (Doc. 23-1 at 13; Doc. 23-8).
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1

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).
Plaintiff and her attorney entered into a contingent fee
agreement whereby plaintiff agreed to pay her attorney 25% of
her past due benefits if she received an award of benefits (Doc.
23-5).

Plaintiff received an award of past due benefits.

Defendant withheld $17,814.00 from past due benefits to pay
plaintiff’s counsel (Doc. 23-4 at 4).

Plaintiff’s counsel spent

17.25 hours representing plaintiff in the district court action,
and plaintiff’s law clerk spent 13 hours representing plaintiff
in the district court action (Doc. 23-6).
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
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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
benefits.

However, counsel only requested a fee of $17,000.00

for 39.35 hours of work.
$432.02.

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).

In the

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
reasonable.

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.

In the

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
reasonable.

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
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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
cited above.

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).
As noted above, plaintiff’s counsel spent 17.25 hours, and
plaintiff’s law clerk spent 13 hours representing plaintiff in
the district court action (Doc. 23-6).

Although $17,814.00 was

withheld for attorney fees (25% of past due benefits), plaintiff
only seeks $11,000.00 in attorney fees in this case.3
In the case of Siraco v. Astrue, 806 F. Supp.2d 272, 274
(D. Me. 2011), plaintiff’s counsel sought 406(b) attorney fees
of $11,366.62 for 30.15 hours, of which 4.7 hours were performed
by an attorney and 25.45 hours were performed by paralegal work.

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Plaintiff’s counsel notes that they have already received $6,000.00 from the defendant for work performed before
the Social Security Administration. Plaintiff’s counsel has also decreased the requested fee amount by $814.00
because they sought an extension of time to file a brief (Doc. 23-1).
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As that court noted, Gisbrecht requires that within the 25%
limit, the attorney must show that the fee sought is reasonable
for the services rendered.

Id.

The Commissioner argued that

too much was being requested for the paralegal’s work.
277.

Id. at

The court noted that some lawyers do all their own

research; some outsource; some use paralegals; some use law
clerks, legal assistants, or interns.

The court stated that it

is not the purpose of a fee award to encourage or discourage one
or another of these.

Thus, the court reasoned, if a law firm is

able to educate a paralegal to do some of the work that other
firms assign to lawyers, that ability should not compel it to
reduce its contingent fee.

Id. at 278.

The court indicated

that the issue is whether contingent fee agreement yielded a
reasonable fee amount in this case.
granted the attorney fee request.

Id. at 278-279.

The court

Id. at 280.

In the case of Howell v. Colvin, 2014 WLL 317798 (W.D.
Okla. Jan. 28, 2014), plaintiff requested a 406(b) fee of
$18,242.75 for 30.6 hours of attorney time and 11.2 hours of
paralegal time.

The court noted that the Commissioner offered

no authority for excluding paralegal time, and cited to the
Siraco case for the proposition that the proper issue is not
whether paralegal time is compensable but whether the percentage
contingent fee agreement yields a reasonable fee amount.
court found that the fee request was reasonable.
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The

See also Dixon

v. Colvin, 2016 WL 55275 at *2 (D. S.C. Jan. 5, 2016)(court,
citing to Siraco, approved 406(b) request for 8.75 hours spent
by attorneys and 19.75 hours done by paralegals, also indicating
that the issue is not whether paralegal time is compensable, but
whether the overall award yields a reasonable fee amount; i.e.,
is it reasonable in light of the amount of work put forth by
plaintiff’s counsel and the outcome of the case); Atwood v.
Commissioner of Social Security; 2011 WL 6372790 at *2 (D.
Oregon, Dec. 19, 2011)(adopting rationale in Siraco).
Plaintiff’s attorney and law clerk spent 30.25 hours on
this case at the district court level.

The request thus

represents an effective hourly rate of $363.64 ($11,000 ÷
30.25).

The requested hourly rate is within the range of hourly

fees approved in the above cases, and is reasonable in light of
the amount of work put forth by plaintiff’s counsel and law
clerk and the outcome of plaintiff’s case, which resulted in a
fully favorable decision and an award of past due benefits of
$71,256.00.

The court therefore finds that a § 406(b) fee of

$11,000.00, which represents an hourly fee of $363.64 (for 30.25
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. 23) is granted.

Plaintiff’s attorney is entitled to

$11,000.00 in fees under 42 U.S.C. § 406(b).
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The Commissioner

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 $3,528.19, which she received as fees under the
EAJA, after plaintiff’s attorney receives her $11,000.00 in
attorney fees from the Commissioner.
Dated this 3rd day of October 2017, Topeka, Kansas.

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

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