Thompson v. Astrue

Filing 31

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion for an award of attorney's fees pursuant to 42 U.S.C. § 406(b) [# 28 ] is granted, and defendant shall remit to the Law Offices of Harry J. Binder and Charles E. Binder, P.C. attorney's fees in the amount of $11,233.50. Signed by District Judge Catherine D. Perry on 06/08/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL THOMPSON,
Plaintiff,
vs.
CAROLYN COLVIN,
Defendant.

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Case No. 4:12 CV 1530 CDP

MEMORANDUM AND ORDER
This matter is before me on plaintiff’s unopposed motion for attorney’s
fees pursuant to 42 U.S.C. ' 406(b). On September 24, 2013, I reversed and
remanded this case to the Commissioner for further proceedings consistent with
the Memorandum and Order entered the same date. [Doc. # 21 and #22].
Thereafter, I awarded plaintiff attorney’s fees in the amount of $3,790.08 under
the Equal Access to Justice Act, 28 U.S.C. ' 2412. [Doc. # 26]. On remand, an
ALJ found plaintiff disabled and awarded benefits on January 17, 2015. In
connection with the pursuit of benefits, plaintiff signed a fee agreement with
counsel which provides for an award of attorney’s fees in the amount of 25% of
past due benefits awarded by defendant. In accordance with the fee agreement,
the Social Security Administration withheld $11,233.50 from plaintiff’s award,
which represents 25% of the past due benefits. Plaintiff now requests the Court

award this amount under the terms of the fee agreement, and upon receipt,
counsel will remit the previously awarded EAJA fee directly to plaintiff. Under
§ 406(b) of the Social Security Act,
Whenever a court renders a judgment favorable to a claimant . . .
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.
Section 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).
Fees awarded pursuant to § 406(b) are paid out of the claimant’s past due
benefits. Id. at 795. “Because benefits amounts figuring in the fee calculation
are limited to those past due, attorneys may not gain additional fees based on the
claimant’s continuing entitlement to benefits.” Id. “[T]he attorney for the
successful claimant must show that the fee sought is reasonable for the services
rendered.” Id. at 807. Courts must first examine the contingency fee agreement,
next test the agreement for reasonableness, and then appropriately reduce it, if
necessary, based on the character of the representation and the results achieved.

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Id. at 808. Reductions are required if the attorney was responsible for delay or
the benefits are large in comparison to the amount of time counsel spent on the
case. Id.
Plaintiff has requested fees in the amount of $11,233.50 under § 406(b).
In support of the motion, plaintiff submitted time expenditures, the award of
benefits letter from the Social Security Administration, the fee agreement, and
an affidavit of counsel. Defendant does not object to the amount requested and
agrees that the proposed fee should be awarded. I have independently reviewed
the record in this case and find that the § 406(b) fee request is reasonable and
that no reduction in this amount is warranted. Therefore, I will award plaintiff’s
counsel attorney’s fees under § 406(b) in the amount of $11,233.50, representing
25% of plaintiff’s past due benefits. Plaintiff’s counsel has acknowledged the
obligation to refund the amount of the smaller EAJA fee to plaintiff. Gisbrecht,
535 U.S. at 796. I expect counsel to comply with this obligation, but I will not
order it as this Court has previously held that there is no obligation for the Court
to take any action with respect to the refund. Ciecalone v. Colvin, 4:13CV28
NAB, 2014 WL 1375557, at *4 (E.D. Mo. April 8, 2014) (noting that obligation
to refund smaller fee is attorney’s obligation and statute does not indicate that
court should take action with respect to a refund).
Accordingly,
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IT IS HEREBY ORDERED that plaintiff’s motion for an award of
attorney’s fees pursuant to 42 U.S.C. § 406(b) [#28] is granted, and defendant
shall remit to the Law Offices of Harry J. Binder and Charles E. Binder, P.C.
attorney’s fees in the amount of $11,233.50.

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CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 8th day of June, 2015.

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