MITCHELL v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Robert B. Kugler on 10/20/2015. (dmr)

NOT FOR PUBLICATION

(Doc. Nos. 14 & 15)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
Jane MITCHELL,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF
:
SOCIAL SECURITY
:
:
Defendant.
:
___________________________________ :

Civil Action No. 12–6228 (RBK)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court upon Plaintiff Jane Mitchell’s motion for $4,076.50
in attorney’s fees pursuant to the Social Security Act, 42 U.S.C. § 406(b). For the reasons stated
herein, Plaintiff’s Motion is DENIED WITHOUT PREJUDICE.
On September 23, 2013, this Court remanded Plaintiff’s case for a new administrative
hearing and decision (Doc. No. 10). On October 21, 2013, Plaintiff moved for attorney’s fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 412 (Doc. No. 11). The
parties reached a settlement agreement on October 21, 2013 (Doc. No. 12), and subsequently
executed a Consent Order for Payment of Attorney’s Fees under the EAJA on February 6, 2014
(Doc. No. 13). The Consent Order stipulated that Plaintiff be awarded $1,237.50 in attorney’s
fees and $350.00 in costs pursuant to the EAJA, 28 U.S.C. § 412.
On December 22, 2014, Plaintiff filed this Motion for Attorney’s Fees Pursuant to the
Social Security Act, 42 U.S.C. § 406(b) (Doc. No. 14). Plaintiff asserts that following the Court’s

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remand for an administrative hearing, the Commissioner awarded Plaintiff “over $42,000” in
retroactive Social Security Disability benefits and that the Commissioner withheld $14,076.50
(25%) for attorney’s fees. Pl.’s Br. at 1. Plaintiff thus requests attorney’s fees in the amount of
$4,076.50, which Plaintiff states represents “approximately 9% of past-due benefits,” and “which
is less than the contractual contingency fee of 25%.” Id. Plaintiff states that upon receipt of the
fee, Plaintiff’s counsel will remit the $1,273.50 fee awarded to Plaintiff under the EAJA.1 Id. at
1–2.
Section 406(b)(1)(A) of the Social Security Act indicates that where a court renders
favorable judgment 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.” The Supreme Court has indicated that contingent fees may be
awarded under this statute, but that courts must conduct an independent review to determine the
reasonableness of such fees within this 25 percent cap. Gisbrecht v. Barnhart, 535 U.S. 789, 807
(2002) (“Within the 25 percent boundary . . . the attorney for the successful claimant must show
that the fee sought is reasonable for the services rendered.”).
Plaintiff did not provide to the Court the administrative record subsequent to this Court’s
remand, the Commissioner’s December 18, 2014 Notice of Award, or the December 22, 2014
supplemental Notice, which clarified the withheld past due amount. See Pl.’s Br. & n.1. Without
these documents, the Court cannot determine the reasonableness of the fee request. See
Gisbrecht, 535 U.S. at 808. Furthermore, the Court requests that counsel provide a copy of the

The Supreme Court held that where the Government pays attorney’s fees under both the EAJA
and § 406(b), the claimant’s attorney must refund the amount of the smaller fee to the claimant.
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002).
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contingent-fee agreement and a statement of counsel’s normal hourly billing charges for
noncontingent-fee cases. See id. (“the court may require the claimant’s attorney to submit . . . a
statement of the lawyer’s normal hourly billing charge for noncontingent-fee cases”).
For the foregoing reasons, Plaintiff’s Motion is DENIED WITHOUT PREJUDICE.2

Dated:

10/20/2015

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

2
Plaintiff also filed a Motion to Strike the Final Page of Plaintiff’s Motion for Attorney’s Fees
Pursuant to the Social Security Act, having inadvertently attached an unrelated order (Doc. No.
15). Plaintiff’s Motion to Strike is DENIED AS MOOT.
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