Keith v. Commissioner of Social Security
Filing
39
MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Lanny King on 4/27/2020. 35 MOTION for Attorney Fees is GRANTED, in part, and DENIED, in part. Ms. Thornton-Green is AWARDED a fee for legal services, under 42 U.S.C. § 406(b), in the amount of $8,625. The Commissioner shall PAY Ms. Thornton-Green from Plaintiff's pastdue benefits being withheld for payment of attorney fees. cc: Counsel (MNM)
LAURA KIMBERLY KEITH
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:16‐CV‐00103‐LLK
PLAINTIFF
DEFENDANT
v.
ANDREW SAUL, Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion of Plaintiff’s counsel, Donna S. Thornton‐Green, for
attorney fees pursuant to 42 U.S.C. § 406(b) in the amount of $34,169.13. [DN 35]. The Commissioner
responded in opposition, and counsel replied. [DN 37, 38]. The parties consented to the jurisdiction of
the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit
Court of Appeals. [DN 9].
For the reasons below, the Court will partially GRANT and partially DENY counsel’s motion [DN
35] and will AWARD counsel a fee in the amount of $8,625.
Procedural History
The Court remanded this matter to the Commissioner for further administrative proceedings and
awarded Plaintiff (and, by assignment, counsel) benefits under the Equal Access to Justice Act in the
amount of $2,156.25 (17.25 hours x $125 per hour). [DN 28, 30]. On remand, the Commissioner awarded
Plaintiff disability and auxiliary benefits in the amount of $136,676.50. The Commissioner is presently
withholding $34,169.13 (25% of $136,676.50) of past‐due benefits for payment of attorney fees.
Discussion
The Commissioner (in his trustee‐like role) argues that a Section 406(b) award of $34,169.13
would constitute a “windfall” to counsel in light of her 17.251 hours of Court time (amounting to a rate of
1
The Commissioner’s calculations are slightly different than those stated herein because he has rounded counsel’s
hours up to 17.5.
1
$1,980.82 per hour). [DN 37 at 2]. The Commissioner further argues that the most the Court should
award counsel is $8,625.00 (17.25 hours x $500 per hour). [Id. at 4]. The Court finds both arguments to
be persuasive and will award counsel the maximum fee proposed by the Commissioner.
The Sixth Circuit described the applicable analytic framework in Lasley v. Comm’r of Soc. Sec., 771
F.3d 308 (6th Cir. 2014). Lasley’s counsel sought a Section 406(b) fee in the amount of $26,049.73 (the
full 25 percent of withheld benefits based on 35.5 hours of court work). Id. at 308. The Commissioner
argued that awarding counsel that much would constitute a “windfall” to counsel. Id. at 309. The district
court agreed with the Commissioner, reduced the fee to $12,780, the amount proposed by the
Commissioner (35.5 hours x $360 per hour), and the Sixth Circuit affirmed. Id. The Sixth Circuit held that
$360 per hour was “per se reasonable” because it was not more than “twice the standard rate” of $180
per hour, applicable to Section 406(b) fee requests in the Southern District of Ohio. Id. (quoting Hayes v.
Sec'y of Health & Human Servs., 923 F.2d 418, 422 (6th Cir. 1991)).
Magistrate Judge Brennenstuhl recently conducted a survey of relevant caselaw and determined
that the standard rate in the Western District of Kentucky is $140 per hour. Carter v. Comm’r, No. 4:15‐
CV‐00058‐HBB, 2019 WL 4169895, at *6 (W.D. Ky. Sept. 3, 2019). In this case, therefore, a fee of $4,830
(17.25 hours x $280 per hour) would be per se reasonable.
However, a “hypothetical hourly rate that is equal to or greater than twice the standard rate may
[also] well be reasonable.” Lasley v. Comm'r, 771 F.3d 308, 309 (6th Cir. 2014) (quoting Hayes, 923 F.2d
at 422). In this case, the Commissioner acknowledges that “[s]ince [counsel] is more experienced than
[many other attorneys], a rate somewhat closer to [a] higher goalpost (such as $500 per hour) may be
appropriate.” [DN 37 at 4]. Because counsel is one of the most experienced attorneys representing Social
2
Security plaintiffs in the Western District of Kentucky, the Court finds that counsel is entitled to $500 per
hour. Therefore, the appropriate fee in this case is $8,625 (17.25 hours x $500 per hour).2
Counsel’s reliance on Culbertson, Barcenas, and Creech is unpersuasive.
Plaintiff argues that three cases entitle her to a Section 406(b) fee of $34,169.13: Culbertson v.
Comm’r, 139 S.Ct. 517 (2019); Barcenas v. Comm’r, No. CV 16‐01311‐AS, 2019 WL 6736900 (C.D. Cal. Aug.
20, 2019); Creech v. Comm'r, No. 3:15‐CV‐826‐J‐PDB, 2020 WL 32950 (M.D. Fla. Jan. 2, 2020). [DN 38 at
1‐5, 5, 5].
In Culbertson v. Comm’r, 139 S.Ct. 517 (2019), Culbertson represented Wood in her Social Security
disability case. Wood v. Comm'r, 861 F.3d 1197 (11th Cir. 2017), rev'd and remanded sub nom. Culbertson
v. Berryhill, 139 S.Ct. 517 (2019). The District Court remanded Wood’s case for further administrative
proceedings, which resulted in an award of benefits. Id. at 1201. The Social Security Administration
withheld 25 percent of past‐due benefits and awarded Culbertson $2,865 pursuant to Section 406(a) for
his time before the Administration. Id. The District Court was called upon to determine Culbertson’s
Section 406(b) fee for his time before the Court. Id. Culbertson requested a fee of $4,488.48. Id. The
District Court reduced the fee to $1,623.48 ($4,488.48 minus $2,865). Id. The District Court “declined to
pay the full amount requested by Mr. Culbertson because it found he failed to subtract the earlier § 406(a)
award in calculating his fees.” Id.
The Supreme Court reversed and remanded with the possibility that Culbertson receive the full
$4,488.48 requested (with no subtraction for Culbertson’s administrative time). Culbertson v. Berryhill,
139 S.Ct. 517 (2019). The Court’s ruling was based on interpretation of 42 U.S.C. § 406(b)(1)(A):
Whenever a court renders a judgment favorable to a claimant under [Title II of the Social Security
Act] who was represented before the court by an attorney, the court may determine and allow
2
Counsel states (correctly) that she “understands that because the amount of attorney’s fees awarded to Plaintiff
pursuant to the Joint Stipulation/Agreed Order for Award of Attorney Fees under the Equal Access to Justice Act,
i.e., $2,156.25, is smaller than the amount of attorney’s fee herein requested [or awarded], it must be refunded to
the Plaintiff.” [DN 35 at 1].
3
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.
Section 406(b)(1)(A) (emphasis added). The Court determined that “such” refers back to “represent[ation]
before the court by an attorney” and does not contemplate representation before the Administration.
139 S.Ct. at 518.
Culbertson is distinguishable because, unlike Culbertson, present counsel states she “has not
sought an administrative fee pending this court’s order.” [DN 38 at 4]. Because the Court does not seek
to reduce counsel’s Section 406(b) fee based on a Section 406(a) fee she may or may not receive in the
future, counsel’s reliance on Culbertson is unpersuasive. While counsel emphasizes that she expended
135.75 hours at the administrative and court levels [DN 35 at 3; DN 38 at 4], nothing in Culbertson
authorizes this Court to award payment for time spent at the administrative level.
Counsel’s reliance on Barcenas v. Comm’r, No. CV 16‐01311‐AS, 2019 WL 6736900 (C.D. Cal. Aug.
20, 2019) is also unpersuasive. In Barcenas, the District Court approved a Section 406(b) fee of $22,415
for 20.4 hours of attorney time plus $388 for 3.1 hours of paralegal time, resulting in an “hourly [attorney]
fee of approximately $1,099” ($22,415 divided by 20.4 hours). The Court found an “hourly rate of $1,099
reasonable under the circumstances” because, among other things, “reducing § 406(b) fees after
[Crawford v. Comm’r, 586 F.3d 1142 (9th Cir.)] is a dicey business.” Id. at *3 (internal quotation
eliminated). As discussed above, the Sixth Circuit and this Court have consistently reduced Section 406(b)
fee requests based on the number of court hours expended and the standard rate for court work. See
Lasley v. Comm’r, 771 F.3d 308 (6th Cir. 2014); Carter v. Comm’r, No. 4:15‐CV‐00058‐HBB, 2019 WL
4169895 (W.D. Ky. Sept. 3, 2019).
Finally, counsel’s reliance on Creech v. Comm'r, No. 3:15‐CV‐826‐J‐PDB, 2020 WL 32950 (M.D. Fla.
Jan. 2, 2020) is unpersuasive. In Creech, the District Court approved a Section 406(b) fee of $33,000 for
22.6 hours of attorney time, resulting in an hourly attorney fee of approximately $1,460 ($33,000 divided
by 22.6 hours). Creech is inconsistent with the precedent of the Sixth Circuit and this Court.
4
ORDER
For the foregoing reasons, it is hereby ORDERED that attorney Donna S. Thornton‐Green’s motion
for attorney fees under 42 U.S.C. § 406(b) [DN 35] is GRANTED, in part, and DENIED, in part. Ms. Thornton‐
Green is AWARDED a fee for legal services, under 42 U.S.C. § 406(b), in the amount of $8,625. The
Commissioner shall PAY Ms. Thornton‐Green from Plaintiff’s past‐due benefits being withheld for
payment of attorney fees.
April 27, 2020
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?