Tiegland v. Berryhill

Filing 37

ORDER granting 30 Motion for Attorney Fees (Written Opinion) Signed by Magistrate Judge Becky R. Thorson on 9/25/2020. (DMM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Shane T.,

Civ. No. 18-634 (BRT)
Plaintiff,

v.
ORDER
Andrew Saul,
Commissioner of
Social Security,
Defendant.

Mac Schneider, Esq., Schneider Schneider & Schneider, counsel for Plaintiff.
Linda H. Green, Esq., Social Security Administration, counsel for Defendant.

This matter is before the court on Plaintiff’s counsel’s Petition for Attorney’s Fees
Pursuant to 42 U.S.C. § 406(b). (Doc. No. 30.) Plaintiff’s counsel, Mac Schneider,
requests attorney’s fees in the amount of $21,646.25, with the provision that $5,746.56 in
Equal Access to Justice Act (“EAJA”) fees that were previously awarded be refunded by
counsel to Plaintiff. (Id.)
BACKGROUND
Plaintiff brought this matter before the Court seeking review following the
Commissioner’s final decision denying disability, arguing that the Commissioner failed
to evaluate Plaintiff’s medically-determinable osteoarthritis at step 2, failed to make
findings regarding Plaintiff’s ability to handle and finger as part of the RFC finding,
failed to assign controlling weight to the opinion provided by Plaintiff’s treating

physician, and erred by dismissing Plaintiff’s visual impairments as non-severe at step 2
and by failing to include limitations arising from his visual impairments at step 4. (Doc.
No. 16, Pl.’s Mem. in Supp. of Summ. J. 4–11.) Following a de novo review, the Court
issued an Order granting in part and denying in part Plaintiff’s motion, finding that the
ALJ’s consideration of the treating physician’s opinion was flawed and recommending
the matter be remanded pursuant to 42 U.S.C. § 405(g). (Doc. No. 21.)
The Social Security Administration subsequently issued a Notice of Award stating
that Plaintiff’s “past-due benefits are $86,585.50 for May 2015 through April 2020.”
(Doc. No. 33, Ex. 5 at 5, Notice of Award.) In the contract of employment between
Plaintiff and counsel, they agreed to the following:
As provided by federal law (42 U.S.C. § 406), should the District Court
render a Judgment favorable to the undersigned and disability benefits are
awarded by the District Court Judge, the undersigned agrees that his
attorney shall petition to the Federal District Judge for approval of fees to
equal 25 percent of the total of the past due benefits to which the
undersigned is entitled by reason of such favorable judgment. In the event
the decision is remanded to the Social Security Administration, the
undersigned agrees that his attorney shall petition for approval of fees equal
to 25 percent of the total past due benefits to which the undersigned is
entitled by reason of entry of a favorable or partially favorable decision by
SSA.
(Doc. No. 33, Ex. 4.) Social Security therefore withheld one-quarter of those past due
benefits ($21,646.25) for potential payment of attorney’s fees. (Doc. No. 33, Ex. 5 at 6.)
The Court has approved, and the Defendant has already paid, fees in this case under the
EAJA in the amount of $5,746.56. (Doc. No. 28, 10/08/2019 Ord.) Plaintiff’s counsel has
now filed a petition seeking to collect attorney’s fees under 42 U.S.C. § 406(b). (Doc.
No. 30, Pet. for Atty’s Fees.)
2

ANALYSIS
Section 406(b) requires judicial review of contingent fee arrangements in Social
Security representations “as an independent check, to assure they yield reasonable results
in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (1992). Agreements are
unenforceable when they provide for fees in excess of twenty-five percent of the past-due
benefits, but “[w]ithin the 25 percent boundary . . . the attorney for the successful
claimant must show that the fee sought is reasonable for the services rendered.” Id.
(citing 42 U.S.C. § 406(b)). A reduced fee may be appropriate where the legal
representation was substandard, counsel was responsible for delay that increased the fund
from which the fee was payable, or if benefits were large in comparison to the amount of
time counsel spent on the case. Gisbrecht, 535 U.S. at 808.
Plaintiff’s counsel states that “[a] gross fee award of $21,646.25 is reasonable in
this matter” because (1) Plaintiff and counsel executed a contingent contract of
employment, (2) “counsel does not intend to petition for any additional fee at the
administrative level,” (3) “counsel’s advocacy before this Court was instrumental in
obtaining the successful result on remand, ultimately resulting in a gross award of
$86,585.50 in past-due benefits, ongoing SSDI benefits, and Medicare eligibility for what
is likely to be the rest of [Plaintiff’s] life,” (4) the “net attorney’s fees of $15,899.69,
when accounting for the $5,746.56 in EAJA fees that will be refunded to [Plaintiff],
would represent less than 19% of past-due benefits payable pursuant to the Court’s
remand order and the subsequent decision issued by [the ALJ],” and (5) “counsel has

3

represented [Plaintiff] for approximately a half a decade.” (Doc. No. 31, Pl.’s Mem. in
Supp. of Petition for Atty’s Fees 4.)
Defendant “declines to assert a position on the reasonableness of Plaintiff’s
request,” asserting that the Commissioner is not the “true party in interest,” and that it is
the Court that is “obligated to act as an ‘independent check’ on § 406(b) requests to
assure that they satisfy the statutory requirement of yielding a ‘reasonable’ result in
particular cases.” (Doc. No. 35, Def.’s Resp. to Pl.’s Mot. for Atty’s Fees 1 (citing
Gisbrecht, 535 U.S. at 807).) Defendant points out, however, that “Plaintiff’s counsel is
requesting $21,646.25 for 27.9 hours of attorney time.” (Id. at 3.) Thus, if the $21,646.25
now requested is divided by 27.9 hours, Plaintiff counsel’s hourly rate would be $775.85.
While an hourly rate of $775.85 appears excessive on its face, a $21,646.25
contingency fee from a $86,585.50 disability award is not necessarily unreasonable for
Social Security cases. See, e.g., Massie v. Colvin, No. 14-2888 (SRN/FLN), 2016 WL
4926443, at *1–3 (D. Minn. Aug. 31, 2016), report and recommendation adopted, 2016
WL 4925782 (D. Minn. Sept. 15, 2016) (approving attorney’s fees in the amount of
$37,095.50); Smith v. Astrue, No. 06-2091 (ADM/AJB), 2008 WL 2609443, at *2–4
(D. Minn. June 24, 2008) (declining to find an effective hourly rate of $1,141.91
excessive, and approving attorney’s fees in the amount of $30,066.50). The U.S. Supreme
Court accepted the twenty-five percent contingent fee as an appropriate starting point for
determining the reasonable fees due to a claimant’s attorney given that contingency fee
agreements “are the most common fee arrangement between attorneys and social security
claimants.” Gisbrecht, 535 U.S. at 800. Furthermore, Plaintiff and his counsel signed an
4

employment contract reflecting a twenty-five percent contingent fee consistent with
§ 406(b), and Plaintiff’s counsel has represented in a signed and sworn declaration that he
will refund Plaintiff the previously awarded EAJA fees as required. (See Doc. No. 33,
Ex. 4; Ex. 6 at ¶ 11.)
In sum, considering the contingent nature of Social Security litigation, the work
performed, and results achieved in this particular case, the overall contribution of
Plaintiff’s counsel warrants an award of attorney’s fees in the amount of $21,646.25.
Thus, the Court finds that an award of attorney’s fees in the amount of $21,646.25 is not
unreasonable in this case.
ORDER
Based on the foregoing, and all the files, records, and submissions herein,
IT IS HEREBY ORDERED that:
1.

Plaintiff’s Petition for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b)

(Doc. No. 30) is GRANTED;
2.

Plaintiff’s counsel is awarded an attorney’s fee in the amount of

$21,646.25; and
3.

As required by Gisbrecht v. Barnhart, 535 U.S. 789 (2002), Plaintiff’s

counsel must refund to Plaintiff the amount of $5,746.56, which represents the EAJA
fees previously awarded.

Date: September 25, 2020

s/ Becky R. Thorson
BECKY R. THORSON
United States Magistrate Judge
5