Halbert v. SSA

Filing 41

MEMORANDUM ORDER: (1) Plas motion for a § 406(b) fee award (DE 36 ) is GRANTED; (2) Subject to a less favorable decision already rendered, counsel is AWARDED the requested sum of $15,603.88 in attorney's fees; and (3) as no further matters remain pending for review, matter is STRICKEN from Court's active docket. Signed by Judge Joseph M. Hood on 8/3/2021. (TDA) cc: COR

Case: 7:16-cv-00167-JMH Doc #: 41 Filed: 08/03/21 Page: 1 of 3 - Page ID#: 263

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
JANET HALBERT,
Plaintiff,

MEMORANDUM ORDER

v.

Civil Action No.
7:16-cv-167-JMH

KILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
** ** ** ** **

On

July

11,

2019

the

Court

reversed

the

Commissioner’s

decision regarding the plaintiff’s disability redeterminations,
remanded the case pursuant to Sentence Four of 42 U.S.C. § 405(g)
for further proceedings, and ordered plaintiff’s benefits to be
reinstated. (DE 32

&

33).

Plaintiff’s counsel

now

moves for

attorney’s fees in the amount of $15,603.88. (DE 36). The motion
is unopposed.1 (DE 39).
The Court is authorized to award attorney's fees following
the

successful

prosecution

of

a

Social

Security

disability

appeal. See 42 U.S.C. §§ 406(b)(1), 1383(d)(2). However, the fees
may not exceed 25% of the past-due benefits which the claimant

By conceding to the reasonableness of the attorney fees and not opposing the
plaintiff’s motion on procedural grounds (i.e., its late filing), the Court
will find that the Commissioner does not object to the Court’s consideration of
this motion on the merits. See DE 39 at 4, n.2. In any case, the Court concludes
that good cause exists for counsel’s late filing. See DE 40 at 2.
1

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Case: 7:16-cv-00167-JMH Doc #: 41 Filed: 08/03/21 Page: 2 of 3 - Page ID#: 264

receives as a result of the appeal. Id. Furthermore, the attorney
must

show,

and

the

Court

must

affirmatively

find,

that

a

contingency fee sought, even one within the 25% cap, is reasonable
for the services rendered. Gisbrecht v. Barnhart, 535 U.S. 789,
807 (2002).
Upon consideration of the appropriate factors and in light of
the Commissioner's determination not to oppose the merits of the
motion, the Court concludes that the requested fee is reasonable.
It is less than 25% of the past due benefits, plaintiff signed a
fee agreement consistent with the requested fee, the requested fee
does not reflect a rate of compensation more than twice the
standard rate, and it cannot be said that plaintiff's counsel was
ineffective or expended minimal effort in the case.
Finally, while the Court determines that the amount sought —
$ 15,603.88 — is a reasonable fee, the Court recognizes that on
appeal, the SSA might make (or may have already made) a less than
favorable decision; therefore, the SSA could elect to use the pastdue benefits that flow from the less favorable decision when
recalculating the past-due benefits. As such, counsel may be
ordered to refund the difference should the SSA reduce the fee it
previously authorized.2 Accordingly,

2

POMS GN 03920.030 Representative's Fee - Title II Past-Due Benefits , available
at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0203920030#b.

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Case: 7:16-cv-00167-JMH Doc #: 41 Filed: 08/03/21 Page: 3 of 3 - Page ID#: 265

IT IS ORDERED AS FOLLOWS:
(1) Plaintiff's motion for a § 406(b) fee award (DE 36)
is GRANTED;
(2) Subject to a less favorable decision
counsel

is AWARDED the

requested

sum

already rendered,
of

$15,603.88

in

attorney's fees; and
(3) as no further matters remain pending for review, this
matter is STRICKEN from the Court's active docket.
Dated August 3, 2021

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