Gunn v. Colvin

Filing 33

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiff's Motion to Approve Attorney's Fee (Doc. 31) is GRANTED. IT IS FURTHER ORDERED that Defendant shall remit to Frank T. Koch attorney's fees in the amount of $5,543.50.. Signed by Magistrate Judge Shirley Padmore Mensah on 10/3/16. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
LOISE L. GUNN,
Plaintiff,
v.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No 2:14-CV-20-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s unopposed Motion to Approve Attorney’s
Fee pursuant to 42 U.S.C. § 406(b). (Doc. 31). On February 24, 2015, this Court entered a final
judgment reversing and remanding this case to the Commissioner of Social Security for further
action pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 27). Thereafter, this Court awarded
Plaintiff attorney’s fees in the amount of $3,187.87 under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. (Doc. 30). On remand, on May 3, 2016, the Social Security
Administration found that Plaintiff was disabled and awarded her ongoing benefits, as well as
past due benefits in the amount of $46,174.00. In connection with her pursuit of benefits,
Plaintiff signed a contingency fee agreement in which she agreed to pay her attorneys 25%
percent of the past due benefits she recovered. The Social Security Administration withheld 25%
of the past due benefit amount ($11,543.50) from Plaintiff’s award. It has submitted $6,000.00 to

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Plaintiff’s counsel but continues to hold the remaining $5,543.50. Plaintiff’s attorney now seeks
an award of fees in the amount of $5,543.50.
Under 42 U.S.C. § 406(b)(1)(A),
Whenever a court renders a judgment favorable to a claimant under this
subchapter 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
The Supreme Court has held that Ҥ 406(b) does not displace contingent-fee arrangements 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). “[T]he attorney for the successful claimant must show that
the fee sought is reasonable for the services rendered.” Id. The court should examine the
contingent-fee agreement, test the agreement for reasonableness, and then (if necessary), reduce
the fee award abased on the character of the representation and the results the representation
achieved. Id. at 808. A reduction may be appropriate if the attorney is responsible for delay or if
the benefits are large in comparison to the amount of time counsel spent on the case. Id.
In support of Plaintiff’s request for a fee award of $5,543.50, Plaintiff has submitted a
copy of the contingent fee agreement signed by Plaintiff, a copy of the award of benefits letter
sent to Plaintiff by the Social Security Administration, and an itemized description of the time
Plaintiff’s counsel spent on this case. Defendant does not object to the proposed fee and states
that the proposed fee appears reasonable based on the work performed. The Court has
independently reviewed the record and finds that the fee request is reasonable and that no

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reduction in the amount is warranted. Therefore, the Court finds that Plaintiff should be awarded
a fee of $5,543.50 under 42 U.S.C. § 406(b).
Where fees have been awarded under both the EAJA and § 406(b), the plaintiff’s attorney
must refund to the plaintiff the amount of the smaller fee. Gisbrecht, 535 U.S. at 796. Plaintiff’s
counsel acknowledges this obligation and requests that the court order that he reimburse Plaintiff
$3,187.87, the amount previously awarded under the EAJA. The Court expects Plaintiff’s
counsel to comply with this obligation. However, as this Court has previously found, there is no
obligation for the Court to take any action with respect to the refund. See Ciecalone v. Colvin,
4:13CV28 NAB, 2014 WL 1375557, at *4 (E.D. Mo. April 8, 2014) (nothing that “although
Plaintiff’s counsel is obligated to refund the lesser amount of fees, there is no obligation for the
Court to take any action with respect to the refund”); accord Lowry v. Colvin, No. 1:13 CV 145
JMB, 2016 WL 4720449, at *1 n.2 (E.D. Mo. Sept. 9, 2016).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Approve Attorney’s Fee (Doc.
31) is GRANTED.
IT IS FURTHER ORDERED that Defendant shall remit to Frank T. Koch attorney’s fees
in the amount of $5,543.50.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 3rd day of October, 2016.

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