Taylor v. Colvin

Filing 19

ORDER granting 14 Plaintiff's Motion for Approval and Award of Attorney's Fees as amended 16 . Signed by District Judge Martin Reidinger on 10/3/2017. (khm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:14-cv-00306-MR-DLH

DAVID TAYLOR,

)
)
Plaintiff,
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vs.
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NANCY A. BERRYHILL, Acting
)
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 Approval
and Award of Attorney’s Fees [Doc. 14], as amended [Doc. 16].
I.

PROCEDURAL BACKGROUND
On December 8, 2014, 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 June 10, 2015, 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. [Docs. 9, 10]. On June 26, 2015, the Court awarded
the Plaintiff attorney’s fees in the amount of $5,600.00 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. 13].
On August 18, 2017, the Commissioner issued a Notice of Award to
the Plaintiff indicating that his past due benefits were $59,703.00. [Doc. 143 at 1-6]. The Notice of Award also explains that $14,925.75, representing
25% of the Plaintiff’s back benefits, was being withheld from the Plaintiff’s
back benefits to pay any award of attorney’s fees. [Id. at 5]. The Plaintiff
and his attorney have entered into a contingency fee agreement pursuant to
which any attorney’s fee award cannot exceed 25% of the past due benefits.
[Doc. 14-5].
The Plaintiff now seeks an award of $11,600.00 in fees pursuant to 42
U.S.C. § 406(b)(1), with the additional stipulation that upon receipt of such
payment, he will refund to the Plaintiff the $5,600.00 previously awarded
under the EAJA. [Doc. 14]. The Commissioner does not support or oppose
the Plaintiff’s fee request to the extent that he is seeking fees for services
before this Court. The Commissioner, however, opposes the fee request to
the extent that the Plaintiff is seeking compensation from this Court for
services performed before the agency. [Doc. 18].

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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 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).
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

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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)).
Here, the Plaintiff and his counsel have entered into a contingency fee
agreement by which the Plaintiff has agreed to pay up to 25% of any past
due benefits awarded to his counsel. As the Fourth Circuit has recognized,
Ҥ 406(b) was designed to control, not to displace, fee agreements between
Social Security benefits claimants and their counsel.

As long as the

agreement does not call for a fee above the statutory ceiling of twenty-five
percent of awarded past-due benefits, . . . § 406(b) simply instructs a court
to review the agreement for reasonableness.” Mudd v. Barnhart, 418 F.3d
424, 428 (4th Cir. 2005) (citation and internal quotation marks omitted).
The Court finds that the services rendered in this Court were
appropriate and reasonable to the relief sought, that the contingency fee
agreement executed by the Plaintiff and his counsel is reasonable, and that

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the amount of fees requested is also reasonable. Accordingly, the Plaintiff’s
Motion for Attorney’s Fees is granted.1
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for
Approval and Award of Attorney’s Fees [Doc. 14], as amended [Doc. 16], is
hereby GRANTED, and an award of attorney’s fees in the amount of Eleven
Thousand Six Hundred Dollars ($11,600.00) 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
$5,600.00, 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 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.
IT IS SO ORDERED.

Signed: October 3, 2017

Plaintiff’s counsel further requests authorization “to obtain reimbursement from plaintiff
for the $213.97 advanced to him for postage for service of process and to obtain medical
records submitted to the Social Security Administration and Administrative Law Judge in
connection with his claim.” [Doc. 14 at 3]. Plaintiff’s counsel cites no legal authority for
this request. The payment of such costs is a matter between the Plaintiff and his counsel.
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