Southerland v. Astrue

Filing 54

ORDER GRANTING 50 Plaintiff's Motion for Attorney Fees. Plaintiff's counsel is hereby awarded $3,171.46 from the plaintiff's past due award. The remaining balance of the past-due award shall be released to the plaintiff. Signed by US District Judge Terrence W. Boyle on 3/27/2014. (Fisher, M.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No.: 7:11-CV-158-BO JOSEPH SOUTHERLAND, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ORDER Plaintiffs counsel has moved for attorney's fees and costs pursuant to 42 U.S.C. § 406(b) [DE 50]. For the reasons stated herein, counsel's motion is GRANTED. DISCUSSION Plaintiffs counsel seeks fees pursuant to 42 U.S.C. § 406(b). Section 406(b)(l) allows the Court to award a "reasonable fee" of up to twenty-five percent of the past-due benefits paid to the plaintiff. Here, plaintiffs counsel has requested twenty-five percent of the plaintiffs past-due benefits. The government objects to this motion and argues that a lower fee should be awarded. This Court reviews the requested fee for reasonableness, and may reduce the fee if, for example, the attorney is responsible for a delay in the proceedings or the award would amount to a windfall to counsel. See Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002). Plaintiff was awarded $60,285.85 in total past-due benefits; twenty-five percent of plaintiffs past-due benefits equals $15,071.46. Plaintiffs counsel has been paid $6,000 for representation at the administrative level and has been awarded Equal Access to Justice Act (AJA) fees in the amount of $5,900. Counsel has submitted documentation .. recording thirty-six hours and twenty five minutes related to the representation of plaintiff before this Court. Under the circumstances of this case, the Court finds that an award of twenty-five percent of plaintiffs past due award yields a reasonable amount and would not amount to a windfall to plaintiffs counsel. Based on the number of hours worked, the lodestar amount equals approximately $250 per hour, which the Court does not find to be "out of line with the character of representation and the results achieved." Mudd v. Barnhart, 418 F.3d 424, 428 (4th Cir. 2005) (quotation and citation omitted). Nor does the Court find concern with counsel's proposed method of collecting his fee - by retaining his EAJA and administrative awards and seeking only the remaining balance of his twentyfive percent fee from plaintiffs past-due award. CONCLUSION For the foregoing reasons, plaintiff's motion for attorney's fees pursuant to §406(b)(1) is GRANTED. Plaintiffs counsel is hereby AWARDED $3,171.46 from plaintiff's past-due award. The remaining balance of the past-due award shall be released to plaintiff. SO ORDERED. This the~ day of March, 2014. T RRENCE W. BOYLE UNITED STATES DISTRIC 2

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