Adwell v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl granting 21 Plaintiff's Motion for Attorney Fees. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:14CV-00013-HBB

PATRICK S. ADWELL

PLAINTIFF

VS.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the motion of Plaintiff, Patrick S. Adwell (APlaintiff@), pursuant to 42
U.S.C. ' 406(b), for the award of attorney fees (DN 21). Defendant, Carolyn W. Colvin,
Commissioner of Social Security (ACommissioner@), has filed a response indicating she has no
objection (DN 22). Given the circumstances, there is no need to wait for the reply to expire to
grant Plaintiff’s motion. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have
consented to the undersigned United States Magistrate Judge conducting all further proceedings in
this case, including issuance of a memorandum opinion and entry of judgment, with direct review
by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 8). This matter is now
ripe for determination.

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FINDINGS OF FACT
On January 27, 2014, Plaintiff filed a complaint seeking judicial review of the final
decision of the Commissioner pursuant to 42 U.S.C. ' 405(g) (DN 1). The Commissioner filed an
answer and a copy of the administrative record (DN 6, 7). Plaintiff filed a Fact and Law Summary
setting forth his challenges to the final decision of the Commissioner (DN 11). Thereafter, the
Commissioner filed a motion for judgment under sentence four of 42 U.S.C. § 405(g) (DN 14).
Plaintiff did not object to Defendant’s motion.
The undersigned magistrate judge issued a memorandum opinion and order that granted
the Commissioner’s motion, reversed the final decision of the Commissioner, and remanded the
case to the Commissioner, pursuant to sentence four of 42 U.S.C. ' 405(g), for further
administrative proceedings and a new decision (DN 15).

The judgment was entered on

September 11, 2014 (DN 16).
On October 10, 2014, Plaintiff filed his motion for an award of attorney fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1) (DN 17). The Commissioner filed
a response indicating she had no objection to the motion (DN 18). On January 14, 2015, the
undersigned issued a memorandum opinion and order that granted Plaintiff’s motion, awarded
Plaintiff attorney’s fees in the amount of $2,351.35, and awarded Plaintiff costs in the amount of
$400.00 (DN 19). The judgment was entered on January 14, 2015 (DN 20).
On February 3, 2016, Plaintiff filed his motion for an award of attorney fees under 42
U.S.C. ' 406(b) (DN 21). Plaintiff seeks approval of attorney fees in the amount of $8,323.00
(DN 21). The Commissioner does not oppose an award of attorney fees (DN 22).

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CONCLUSIONS OF LAW
Pursuant to 42 U.S.C. § 406(b), attorney fees are properly awarded to a claimant who
succeeds on her Social Security Appeal before the federal court. Allan v. Commissioner, No.
10-11651, 2014 WL 1818110, at *1 (E.D. Mich. May 7, 2014). A judgment issued by the federal
court either awarding benefits or remanding the matter to the Commissioner may be considered
Afavorable@ within the meaning of the statute, so long as the claimant is awarded benefits Aby
reason of@ the judgment. See Nolan v. Comm=r of Soc. Sec., No. 4:11-CV-5, 2013 WL 5937908,
at *1 (E.D. Tenn. Nov. 5, 2013) (citing Bergen v. Comm=r of Soc. Sec., 454 F.3d 1273, 1277 (11th
Cir. 2006)). Notably, the statute expressly directs the fee award is not to exceed 25% of the total
past-due benefits to which the claimant is entitled:
(b) Fees for representation before court
(1)(A) Whenever a court renders a judgment favorable to a claimant
under [42 U.S.C. ' et seq.] 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, notwithstanding the provisions of section
405(I) of this title, but subject to subsection (d) of this section,
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. In
case of any such judgment, no other fee may be payable or certified
for payment for such representation except as provided in this
paragraph.
42 U.S.C. ' 406(b)(1)(A). The Supreme Court has explained, A' 406(b) does not displace
contingent-fee agreements as the primary means by which fees are set for successfully
representing Social Security benefits claimants in court. Rather, ' 406(b) calls for court review of
such arrangements as an independent check, to assure that they yield reasonable results in
particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (footnote omitted)). Notably,
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fee awards may be made under both EAJA and ' 406(b), but when this happens, “the claimant=s
attorney must refund to the claimant the amount of the smaller fee.@ Gisbrecht, 535 U.S. at 796.
A court may award attorney fees only for work performed before the court. Horenstein v.
Sec’y of Health & Human Servs., 35 F.3d 261, 262 (6th Cir. 1994). Due deference should be
given to the expression of the intentions of client and attorney in setting fees. Rodriquez v.
Bowen, 865 F.2d 739, 746 (6th Cir. 1989). A 25% fee agreement between attorney and client
should not be viewed as reasonable per se, but such a fee should be accorded a rebuttable
presumption of reasonableness. Id. If deductions are to be made in the fee, they should
generally be one of two types: (1) deductions occasioned by counsel=s improper conduct or
ineffectiveness, or (2) deductions to prevent a windfall resulting from either an inordinately large
award, or minimal effort expended. Id.
Plaintiff requests that this Court approve an award of attorney=s fees pursuant to 42 U.S.C.
' 406(b) (DN 21). In support of her fee request, Plaintiff submitted the following documents:
(1) Affidavit of counsel, Mary G. Burchett-Bower, setting forth the
procedural history of the case and a statement of services
rendered before the Appeals Council and the federal court;
(2) The Notice of Award; and
(3) A copy of the fee agreement signed by Plaintiff.
(DN 21, Attachments). Plaintiff’s counsel reports that at least 28.70 hours of services were
rendered exclusively in connection with the federal court action (DN 21-10 at 3). For these
services, a fee in the amount of $8,323.00 is requested (Id.). Plaintiff’s counsel advises that
Plaintiff has benefitted substantially considering his receipt of 75% of the past-due benefits
amounting to approximately $99,517.50; the $2,331.25 EAJA fee award; continuing monthly
benefits beginning in the amount of $2,257.00 in January 2016; and medical benefits under the
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Medicare program retroactive to January 1, 2013 (Id.). Additionally, Plaintiff’s counsel notes she
already received an award of $2,331.25 in attorney fees under the EAJA, and indicates that
Plaintiff will be entitled to a refund of that amount if she is awarded fees under 42 U.S.C. § 406(b)
(Id.). The Commissioner does not oppose Plaintiff’s request that the Court order payment of a fee
of $8,323.00 to Plaintiff’s attorney out of Plaintiff’s past-due benefits (DN 22).
The undersigned has reviewed the record and concludes $8,323.00 for an attorney fee
award, under 42 U.S.C. § 406(b), is reasonable and appropriate in light of the circumstances.

ORDER
IT IS HEREBY ORDERED that Plaintiff=s motion for attorney=s fees under 42 U.S.C. §
406(b) (DN 21) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s attorney, Mary G. Burchett-Bower, is
awarded a fee for services in the amount of $8,323.00, out of Plaintiff’s past-due benefits.

March 8, 2016

Copies to:

Counsel of Record

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