Hagan, Jr. v. Astrue

Filing 16

ORDER granting 15 Motion for Attorney Fees. Signed by Magistrate Judge Dennis Howell on 08/03/2015. (klb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12-cv-00339-MR-DLH

GILBERT C. HAGAN, JR.,

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Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security,
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Defendant.
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_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for Attorney
Fees under § 406(b) of the Social Security Act [Doc. 15].
I.

PROCEDURAL BACKGROUND
On October 26, 2012, the Plaintiff initiated this action seeking judicial

review of the Commissioner’s decision to deny his application for benefits
under the Social Security Act. [Doc. 1]. On April 29, 2013, this Court
reversed the Commissioner's decision denying the Plaintiff's application for
benefits and remanded the case to the Appeals Council for further
administrative action. [Doc. 11]. On August 12, 2013, the Court awarded
the Plaintiff attorney’s fees in the amount of $4,561.91 in full satisfaction of

any and all claims by the Plaintiff pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412(d) (EAJA). [Doc. 14]. The Court also awarded the
Plaintiff $350.00 in court fees. [Id.]. The majority of the court fee award,
however, was seized by the U.S. Treasury Department pursuant to a lien for
an outstanding debt of the Plaintiff in the amount of $220.55. [Doc. 15-5].
Upon remand, a new hearing on the Plaintiff’s claim was held on
December 6, 2013, over which ALJ John McFadyen presided. [Doc. 15-2].
On January 9, 2014, ALJ McFadyen issued an unfavorable decision in the
Plaintiff’s case. [Id.]. The Plaintiff appealed, and on September 25, 2014,
the Appeals Council remanded the case to the ALJ for another hearing.
[Doc. 15-3]. Another hearing on the Plaintiff’s claim was held on February
12, 2015, over which ALJ Keith Pilkey presided. On February 27, 2015, ALJ
Pilkey issued a fully favorable decision, granting benefits from the Plaintiff’s
amended alleged onset date of disability discrimination. [Doc. 15-4].
On May 24, 2015, the Social Security Administration issued a notice to
the Plaintiff’s counsel advising that $31,268.23, representing 25% of the
Plaintiff’s back benefits, was being withheld from the Plaintiff’s award to be
applied to the payment of attorney’s fees in this case. [Doc. 15-1].

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Plaintiff’s counsel now seeks an award of $31,268.23 in fees pursuant
to 42 U.S.C. § 406(b)(1). [Doc. 15]. The Defendant does not oppose the
Plaintiff’s request.
II.

DISCUSSION
There are two avenues by which a Social Security benefits claimant

may be awarded attorney’s fees. First, claimants may seek a fee award
under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), which
provides that “a court shall award to a prevailing party other than the United
States fees and other expenses ... incurred by that party in any civil action
(other than cases sounding in tort), including proceedings for judicial review
of agency action, brought by or against the United States in any court having
jurisdiction of that action....” 28 U.S.C. § 2412(d)(1)(A). Second, a claimant
may seek an award pursuant to 42 U.S.C. § 406(b), which provides that
“[w]henever 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....” 42 U.S.C. § 406(b)(1)(A).

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While attorney's fees may be awarded under both the EAJA and §
406(b), the Social Security Act requires that the attorney must refund to the
claimant the smaller fee. “Thus, an EAJA award offsets an award under
Section 406(b), so that the amount of the total past-due benefits the claimant
actually receives will be increased by the EAJA award up to the point the
claimant receives 100 percent of the past-due benefits.” Stephens ex rel.
R.E. v. Astrue, 565 F.3d 131, 134-35 (4th Cir. 2009) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002)).
The Court finds that the services rendered in this Court were
appropriate and reasonable for the relief sought. Accordingly, the Motion for
Attorney’s Fees under the Social Security Act is granted.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Attorney
Fees under § 406(b) of the Social Security Act [Doc. 15] is hereby GRANTED
and an award of attorney's fees in the amount of Thirty-One Thousand Two
Hundred Sixty-Eight Dollars and Twenty-Three Cents ($31,268.23) pursuant
to 42 U.S.C. § 406(b)(1)(A) is hereby approved.
IT IS FURTHER ORDERED that upon receipt of the § 406(b) fees,
Plaintiff’s counsel is hereby instructed to return to the Plaintiff the sum of

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Four Thousand Five Hundred Sixty-One Dollars and Ninety-One Cents
($4,561.91), representing the fee that counsel previously received pursuant
to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
IT IS FURTHER ORDERED that upon receipt of the § 406(b) fees,
Plaintiff’s counsel is further instructed to return to the Plaintiff the sum of One
Hundred Twenty-Nine Dollars and Forty-Five Cents ($129.45), which
represents the remainder of the court costs initially awarded to the Plaintiff
after satisfaction of his outstanding debt.
IT IS FURTHER ORDERED that a copy of this Order be provided to
the Social Security Administration in order to effectuate payment of the
award from past due benefits which have been withheld for such purpose
pursuant to Title II of the Social Security Act.
IT IS SO ORDERED.

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