Green v. Colvin

Filing 29

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Plaintiffs Attorney's Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b) (ECF No. 26 ) is GRANTED. IT IS FURTHER ORDERED that Defendant shall remit to attorney Kathleen E. Overton at the Law Offices of Daniel Parmele, 1505 E. Bradford Parkway, Springfield, MO 65804, attorney's fees in the amount of $8,622.00. Signed by District Judge Ronnie L. White on 5/16/2017. (NEB)

UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH GREEN,
Plaintiff,
v.

NANCY BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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No. 4:14CV918 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Attorney' s Motion for an Award of Attorney
Fees Under 42 U.S.C. § 406(b) (ECF No. 26). In the motion, Plaintiffs attorney seeks $8,622.00
in fees from the past-due benefits awarded to the Plaintiff for services performed in successfully
appealing the Commissioner' s Social Security determination. Defendant has filed a response
stating she has no objection to an award of attorney' s fees in the amount requested (ECF No. 28).
On July 13, 2015, United States Magistrate Judge Thomas C. Mummert, III, (retired)
reversed and remanded this case to the Commissioner for further proceedings. (ECF Nos. 21 ,
22) Counsel for Plaintiff was also awarded attorney' s fees in the amount of $3 ,821.88 under the
Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (ECF No. 25) On remand, the ALJ
found Plaintiff disabled in a favorable decision dated August 23 , 2016. (Pl.'s Ex. 1, ECF No. 263) The ALJ determined that Plaintiff had been disabled since June 15, 2010 and awarded past
due benefits under Title II of the Social Security Act. (Pl. ' s Ex. 1, ECF No. 26-3 ; Pl.'s Ex. 2,

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the Defendant in this suit. No further actions needs to be
taken to continue this suit by reason of the last sentence of Section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).

ECF No. 26-4) The Notice of Award also withheld 25%, or $10,521.50, from the past due
benefits in the event that the Social Security Administration ("SSA") was required to pay
attorney's fees in accordance with a fee agreement between Plaintiff and his counsel. (Pl.' s Ex.
2, ECF No. 26-4) Plaintiffs attorney now requests that the Court award 25% of the back pay for
services rendered in the United States District Court pursuant to the fee agreement, minus fees
recovered under 42 U.S .C. § 406(a).2 The case was reassigned to this Court following Judge
Mummert' s retirement. (ECF No. 27)
Under § 406(b) of the Social Security Act:
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 of25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such judgment[.]
42 U.S.C. § 406(b)(l)(A). Interpreting§ 406(b), the United States Supreme Court in Gisbrecht
v. Barnhart concluded,"§ 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." 535 U.S. 789, 807 (2002). Within
the 25% boundary set forth in the statute, "the attorney for the successful claimant must show the
fee sought is reasonable for the services rendered. " Id. Specifically, courts must look to the
contingent fee agreement; test the agreement for reasonableness; and reduce the fee, if necessary,
"based on the character of the representation and the results the representative achieved." Id. at
808.
Here, Plaintiffs counsel has requested attorney' s fees under§ 406(b) in the amount of
$8,622.00, which represents 25% of the total past due benefits minus fees received under §
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The Fee Agreement also provided that, should Plaintiffs attorney receive fees pursuant to 42
U.S.C. § 406(b), Plaintiff will be refunded the lesser amount of either the§ 406(b) fees or the
EAJA fees collected pursuant to 28 U.S .C. § 2412. (Pl. ' s Ex. 3, ECF No. 26-5) According to
the memorandum in support of the present motion, Plaintiffs attorney also received $1 ,899.50 in
attorney' s fees under§ 406(a) for work performed before the Social Security Administration.
(Pl.'s Mem. ins Support of Mot. for Award of Attorney Fees p. 3, ECF No. 26-1)
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406(a). In support, counsel has submitted the ALJ's favorable decision, the notice of award of
benefits letter from the SSA, the contingent fee agreement between Plaintiff and counsel, an
itemized invoice for legal services, and an Executive Summary of the Missouri Bar Economic
Survey Report. (ECF Nos. 26-3 to 26-7) Defendant does not object to an award under§ 406(b)
of $8,622.00.
After independent review of the record in this case, the Court finds that the § 406(b)
request for attorney's fees is reasonable, and no reduction in the requested amount is warranted.
Therefore, the Court will award Plaintiffs counsel attorney's fees under§ 406(b) in the amount
of $8,622.00, representing 25% of Plaintiff's past due benefits minus the $1,899.50 counsel has
already received under§ 406(a). Plaintiffs counsel has acknowledged that she is obligated to
refund to Plaintiff the amount of the smaller EAJA fee, which in this case was $3,821.88.

Gisbrecht, 535 U.S . at 796. While Defendant requests that the Court order Plaintiffs counsel to
refund the EAJA fee to Plaintiff, the Court notes that neither the EAJA nor§ 406(b) require the
Court to take action with regard to refunding the smaller fee. See, e.g. , Gunn v. Colvin, No.
2:14-CV-20-SPM, 2016 WL 5688613, at *2 (E.D. Mo. Oct. 3, 2016) ("[T]here is no obligation
for the Court to take any action with respect to the refund."); Ciecalone v. Colvin, No. 4:13CV28
NAB, 2014 WL 1375557, at* 4 (E.D. Mo. Apr. 8, 2014) (same). Counsel is aware that she must
refund the amount of the EAJA award to the Plaintiff, and the Court expects counsel to comply
with this obligation.
Accordingly,

IT IS HEREBY ORDERED that Plaintiffs Attorney's Motion for an Award of
Attorney Fees Under 42 U.S.C. § 406(b) (ECF No. 26) is GRANTED.

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IT IS FURTHER ORDERED that Defendant shall remit to attorney Kathleen E.
Overton at the Law Offices of Daniel Parmele, 1505 E. Bradford Parkway, Springfield, MO
· 65804, attorney' s fees in the amount of $8,622.00.
Dated this 16th day of May, 2017.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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