Romesberg v. Astrue

Filing 23

ORDER granting 21 Motion for Attorney Fees as directed. Signed by District Judge Martin Reidinger on 09/05/2014. (klb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:12-cv-00017-MR-DLH

MICHAEL ROMESBERG,

)
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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. 21].
I.

PROCEDURAL BACKGROUND
On May 18, 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 January 25, 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. 17]. On February 5, 2013, the Court awarded
the Plaintiff attorney’s fees in the amount of $3,974.81 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. 20].
A new hearing on Plaintiff’s claim was held on January 22, 2014
before Administrative Law Judge Thomas Batson (ALJ Batson).

On

January 30, 2014, ALJ Batson issued a fully favorable decision granting
benefits from March 21, 2006 onward. [Doc. 21-1].
On July 31, 2014, the Social Security Administration issued a Notice
of Award explaining that $24,004.50, 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. [Doc. 21-2]. The Plaintiff and his attorney
had a contingency fee agreement pursuant to which any attorney’s fee
award could not exceed 25 percent of the past due benefits. [Doc. 22].
The Plaintiff now seeks an award of $15,000.00 in fees pursuant to
42 U.S.C. § 406(b)(1). [Doc. 21]. The Defendant does not oppose the
Plaintiff’s Motion. [Id.].
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
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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 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 entered into a contingency fee
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agreement by which the Plaintiff agreed to pay 25% of any past due
benefits awarded to his counsel. As the Fourth Circuit has recognized,
Ҥ406(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) (internal quotation and citation 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 his counsel is reasonable.
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. 21] is hereby
GRANTED and an award of attorney's fees in the amount of Fifteen
Thousand Dollars ($15,000.00) pursuant to 42 U.S.C. § 406(b)(1)(A) is
hereby approved.

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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
$3,974.81, 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
pursuant to Title II of the Social Security Act.
IT IS SO ORDERED.

Signed: September 5, 2014

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