Timmons v. Astrue

Filing 29

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the motion to approve attorney's fees in the amount of $4,200 is GRANTED. [Doc. #26] Signed by Honorable Audrey G. Fleissig on 8/10/2011. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
EMMET L. TIMMONS, JR.,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 2:09CV00020 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion filed by Plaintiff’s counsel for
approval of attorney’s fees in the amount of $4,200, pursuant to the Social Security Act,
42 U.S.C. § 406(b). For the reasons set forth below, the motion shall be granted.
BACKGROUND
The record indicates that Plaintiff’s counsel’s participation in this case began in
2004. On March 20, 2009, after rather lengthy administrative proceedings, the Appeals
Council of the Social Security Administration (“SSA”) upheld the decision of an
Administrative Law Judge that Plaintiff was not disabled prior to July 5, 2007, but
became disabled on that date. On April 14, 2009, Plaintiff entered into an agreement
with counsel, whereby counsel would represent Plaintiff in an action seeking judicial
review of the final agency decision in return for attorney’s fees of 25% of any back-due
benefits recovered.

Counsel filed such an action in this Court on Plaintiff’s behalf and after counsel
filed a brief in support of the complaint, the Commissioner filed a motion to remand the
case to the SSA for further consideration, under sentence four of 42 U.S.C. § 405(g).
Plaintiff stated that he had no objection, and the Court granted the motion on December
22, 2009. Plaintiff did not seek attorney’s fees at the time, as he could have under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A).
Upon remand by the Court, the Commissioner determined in May 2011 that
Plaintiff was entitled to disability benefits as of August 1, 2003. As a result of this
decision, Plaintiff was awarded past-due benefits in the amount of $56,799.95. The SSA
withheld from the past-due benefits 25%, or $14,200, for potential attorney’s fees. On
June 14, 2011, the SSA authorized counsel to charge and collect a fee in the amount of
$10,000, and noted that this amount would be paid directly to counsel from the withheld
funds. Counsel now seeks an award of the balance of $4,200 under § 409(b) of the Social
Security Act, for services provided to Plaintiff before this Court.
In support of his request, counsel provided documentation that he performed 11.5
hours of work and that three assistants performed a total of 13.25 hours of work on this
case before the Court. The Commissioner asks the Court to approve a reduced amount,
taking into account the facts that a significant portion of the work on this case before the
Court was performed by assistants, and that Plaintiff’s counsel did not seek fees under
EAJA, which would have resulted in Plaintiff having to pay less to counsel from the pastdue benefits.
2

DISCUSSION
Attorneys representing successful Social Security claimants may seek fees under
two different statutes, the Social Security Act, 42 U.S.C. § 406(b), and EAJA, 28 U.S.C.
§ 2412(d)(1)(A). Under § 406(b) of the Social Security Act, “the court may determine
and allow as part of its judgment a reasonable fee . . . not in excess of 25 percent of
the . . . past-due benefits to which the claimant is entitled by reason of such judgment.”
Fees awarded pursuant to § 406(b) are paid out of the claimant’s past-due benefits.
Under EAJA, a Social Security claimant may be awarded fees payable by the United
States if the Government’s position in the litigation was not “substantially justified.” 28
U.S.C. § 2412(d)(1)(A). EAJA fees are paid with agency funds and are determined not
by a percent of the amount recovered, but by lodestar method, based at the reasonable
time expended and the attorney’s reasonable hourly rate.
Fee awards may be made under both § 406(b) and EAJA, but the claimant’s
attorney must refund to the claimant the amount of the smaller fee. Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002). “Thus, an EAJA award offsets an award under
Section 406(b), so that the [amount of the total past-due benefits the claimant actually
receives] will be increased by the . . . EAJA award up to the point the claimant receives
100 percent of the past-due benefits.” Id. at 796-97.
In Gisbrecht, the Supreme Court held that the “reasonable fee” standard of
§ 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.
3

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. at 808. The court is not
to use the lodestar method when determining reasonableness; the court may consider the
hours spent and the normal billing charge for non-contingent fee cases as a factor, but
must look at all the circumstances to determine what is reasonable. Id. at 801-02.
The fee resulting from a contingency fee agreement can be reduced by the court if
the attorney provided substandard representation, or engaged in dilatory conduct in order
to increase the accrued amount of past-due benefits, or if the “benefits are large in
comparison to the amount of time counsel spent on the case.” Id. at 808. The
determination of reasonableness is left to the court’s discretion. Id.; see also Barton v.
Astrue, No. 4:07CV00067 FRB, 2010 WL 2346353, at *2 (E.D. Mo. June 9, 2010).
Here, upon review of the record, the Court finds that the fees request of $4,200 for
work done on the case before the Court is reasonable, and that, given the unique facts of
this case, no reduction in this amount is warranted. See, e.g., Barton, 2010 WL 2346353,
at *4 (awarding counsel $9,455.50 in fees under § 406(b), where this resulted in the
attorney receiving fees of 25% of past-due benefits as provided for in the parties’
contingency fee agreement, and counsel spent 18.75 hours on the case before the court).

4

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the motion to approve attorney’s fees in the
amount of $4,200 is GRANTED. [Doc. #26]

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 10th day of August, 2011

5