Jarrell v. SSA

Filing 31

MEMORANDUM OPINION AND ORDER: (1) Pla's Motion to Amend/Correct 30 her Motion for Attorney's Fees 27 is GRANTED; (2) Pla's Motion for Attorney's Fees pursuant to 42:406(b)(1) 27 is GRANTED; (3) Commissioner shall PAY $9,785.88 from Pla's past-due benefits to counsel; and (4) Pla's counsel shall REFUND the EAJA fee of $5,043.75 to Pla. Signed by Judge Joseph M. Hood on 7/19/2017. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
TAMMY JO JARRELL,

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

Civil No. 7:16-cv-119-JMH

MEMORANDUM OPINION AND ORDER

****
This matter is before the Court upon Plaintiff Tammy Jo
Jarrell’s Motion for Attorney’s Fees pursuant to 42 U.S.C. §
406(b)(1) [DE 27].

The Commissioner filed a Response [DE 29], and

Plaintiff submitted a Motion to Amend [DE 30] her initial Motion
based on updated information received from the Commissioner.
matter is now ripe for the Court’s review.

This

For the reasons stated

herein, Plaintiff’s Motions are GRANTED.
Plaintiff filed an application for Supplemental Security
Income (“SSI”) on October 17, 2006, alleging disability since March
3, 2004.2

[TR 21-33].

upon reconsideration.

Her application was denied initially and
[TR 21].

1

At Plaintiff’s request, ALJ

 The caption of this matter is amended to reflect that Nancy A. Berryhill became
the Acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin in that role.
2
 Plaintiff filed a previous application for benefits on May 11, 2004, also
alleging disability since March 3, 2004. [TR 21]. Her application was denied
initially and on reconsideration. [Id.]. An ALJ held a hearing and issued an
unfavorable decision on her claim. [Id.]. The AC then denied her request for
review. [Id.].

1

Algernon W. Tinsley held an administrative hearing, then issued an
unfavorable decision on September 17, 2008.
Council remanded the case.

[Id.].

[Id.].

The Appeals

ALJ Jerry Meade held another

administrative hearing and issued an unfavorable decision on July
9, 2012.
well.

[Id.].

[Id.].

The Appeals Council remanded this decision as

After holding yet another administrative hearing,

ALJ Meade issued another unfavorable decision on April 23, 2015.
[Id.].

This time, the Appeals Council denied Plaintiff’s request

for review.

[Id.].

On June 15, 2016, Plaintiff filed the instant action.
1].

[DE

She submitted a combined Motion for Summary Judgment and

Motion to Remand shortly thereafter.

[DE 15].

The Commissioner

then filed a Motion to Remand pursuant to Sentence Four of 42
U.S.C. § 405(g).

[DE 18].

The Court granted the Commissioner’s

Motion, denied Plaintiff’s combined Motions as moot, and remanded
the case.

[DE 19, 20, 21].

Plaintiff next submitted a Motion for

Payment of Attorney’s Fees pursuant to the Equal Access to Justice
Act (“EAJA”), which is codified at 28 U.S.C. § 2412(d).

[DE 22].

The parties ultimately tendered an Agreed Order to the Court,
providing that the Commissioner would pay Plaintiff $5,043.75 in
attorney’s fees.

[DE 25].

The Court approved the Agreed Order.

[DE 26].

2

On April 27, 2017, ALJ Maria Hodges issued a favorable
decision on Plaintiff’s claim.

[DE 27-2].

The Commissioner

notified her that she was entitled to past-due benefits totaling
$33,187.50.

[DE 27-4].

Accordingly, Plaintiff filed a Motion for

Attorney’s Fees pursuant to 42 U.S.C. § 406(b)(1), asking the Court
to award 25% of her past-due benefits, or $8,296.87, to Plaintiff’s
counsel.

[DE 27].

The Motion acknowledges that the award of such

a sum requires Plaintiff’s counsel to refund the smaller EAJA award
to Plaintiff.

[Id.].

After Plaintiff filed this Motion, the

Commissioner notified Plaintiff that she was actually entitled to
$39,183.50 in past-due benefits.

[DE 29].

The Commissioner then

responded to Plaintiff’s initial Motion, indicating that she had
no objection thereto.

[Id.].

The Commissioner also indicated

that she had no objection to Plaintiff’s counsel receiving 25% of
the updated sum of past-due benefits, in the event that Plaintiff
chose to amend her Motion. [Id.]. Plaintiff sought leave to amend
her Motion shortly thereafter.

[DE 30].

“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.” 42 U.S.C. § 406(b)(1)(A).
This

statutory

provision

“does
3

not

displace

contingent-fee

agreements

as

the

primary

means

by

which

fees

are

set

for

successfully representing Social Security benefits claimants in
court.” Gisbrecht v. Barnhart, 535 U.S. 789, 806 (2002). “Rather,
§

406(b)

calls

for

court

review

of

such

arrangements

as

an

independent check, to assure that they yield reasonable results in
particular

cases.”

Id.

Courts

may

“reduce[]

the

attorney’s

recovery based on the character of the representation and the
results the representative achieved.”

Id. at 808.

Similarly,

“[i]f the benefits are large in comparison to the amount of time
counsel spent on the case, a downward adjustment is similarly in
order.”

Id.

While the Commissioner does not object to the amended request
for

an

attorney’s

fee

award

in

this

case,

the

Court

will

nevertheless review the request for reasonableness in accordance
with Gisbrecht.

The record reflects that the correct amount of

Plaintiff’s past-due benefits is $39,187.50.
and

her

attorney

entered

into

a

[DE 29].

contingency-fee

Plaintiff
agreement,

entitling him to 25% of any past-due benefits obtained.
3].

This yields an attorney’s fee of $9,785.88.

[DE 27-

The record

further indicates that Plaintiff’s attorney spent 45.15 hours
working on her case. [DE 27]. Thus, the award of past-due benefits
would be equivalent to an hourly rate of approximately $216.

This

does not strike the Court as unreasonable, given the results
achieved in this case.

However, the Court reiterates that this
4

award requires Plaintiff’s counsel to refund the EAJA fee to his
client.

See Gisbrecht, 535 U.S. at 796 (explaining that “[f]ee

awards may be made under both [the EAJA and § 406(b)], but the
claimant’s attorney must ‘refun[d] the amount of the smaller fee’”)
(quoting Act of Aug. 4, 1985, Pub. L. 99-80, § 3, 99 Stat. 186).
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Plaintiff’s Motion to Amend/Correct [DE 30] her Motion

for Attorney’s Fees [DE 27] be, and is, hereby GRANTED;
(2)

Plaintiff’s Motion for Attorney’s Fees pursuant to 42

U.S.C. § 406(b)(1) be, and is, hereby GRANTED;
(3)

The Commissioner shall PAY $9,785.88 from Plaintiff’s

past-due benefits to counsel; and
(4)

Plaintiff’s

counsel

shall

$5,043.75 to Plaintiff.
This the 19th day of July, 2017.

5

REFUND

the

EAJA

fee

of