Cheek v. Berryhill

Filing 22

ORDER that the Plaintiff's 19 Motion for Attorney Fees under the Social Security Act is GRANTED. 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. Signed by Chief Judge Martin Reidinger on 12/2/2021. (kby)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00172-MR

EVA MARY-FRANCES CHEEK,

)
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Plaintiff,
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vs.
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)
KILOLO KIJAKAZI, 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’s Fees under the Social Security Act [Doc. 19].
I.

PROCEDURAL BACKGROUND
On June 30, 2018, the Plaintiff initiated this action seeking judicial

review of the Commissioner’s decision to deny her application for benefits
under the Social Security Act. [Doc. 1]. On February 14, 2018, on motion of
the Defendant, 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. 14, 15]. On May 15, 2018,
the Court awarded the Plaintiff attorney’s fees in the amount of $4,800.00 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. 18]. The U.S.
Department of the Treasury, however, seized this EAJA fee award to satisfy
an outstanding federal debt owed by the Plaintiff. [See Doc. 20-4].
On September 14, 2021, the Commissioner issued a Notice of Award
to the Plaintiff explaining her past due benefits and stating that $33,900.00,
representing 25% of the Plaintiff’s back benefits, was being withheld from the
Plaintiff’s award to pay any award of attorney’s fees. [Doc. 20-1 at 5]. The
Plaintiff and her attorney had a contingency fee agreement pursuant to which
any attorney’s fee award could not exceed 25% of the past due benefits.
[Doc. 20-2].
The Plaintiff’s counsel now seeks an award of $23,900.00 in fees
pursuant to 42 U.S.C. § 406(b)(1). [Doc. 19].
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

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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
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)). Where counsel did not receive the prior
awarded EAJA fees, however, “there is no requirement for counsel to refund
to the claimant the amount of the smaller fee.” Gage v. Colvin, No. 5:12-CV711-FL, 2014 WL 773523, at *2 (E.D.N.C. Feb. 25, 2014).

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Here, the Plaintiff and her counsel entered into a contingency fee
agreement by which the Plaintiff agreed to pay 25% of any past due benefits
awarded to her 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 pastdue 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, and the contingency fee
agreement executed by the Plaintiff and her counsel is reasonable.
Accordingly, the Plaintiff’s Motion for Attorney’s Fees is granted.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion [Doc. 19] is
hereby GRANTED, and an award of attorney’s fees in the amount of TwentyThree Thousand Nine Hundred Dollars ($23,900.00) pursuant to 42 U.S.C.
§ 406(b)(1)(A) is hereby approved.

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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: December 2, 2021

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