Duncan v. Berryhill

Filing 16

ORDER granting 14 Motion for Attorney Fees. Signed by District Judge Max O. Cogburn, Jr on 10/18/2019. (ams)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-695-MOC
LISA MAXINE DUNCAN,

)
)
Plaintiff,
)
)
vs.
)
)
ANDREW SAUL,
)
Commissioner of Social Security,
)
)
Defendant.
)
_________________________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s Motion for Attorney Fees under Section
406(b) of the Social Security Act. (Doc. No. 14).
Plaintiff’s counsel filed a motion for approval of attorney’s fees under section 406(b) of
the Social Security Act, 42 U.S.C. § 406(b), in the total amount of $28,425.00. Attorney’s fees
under section 406(b) are paid from past-due benefits awarded to a successful claimant. 42
U.S.C. § 406(b). Plaintiff has previously been awarded $5,188.04 in attorney’s fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Defendant has responded to Plaintiff’s
motion and indicates no objection to the amount requested by Plaintiff.
This Court must decide if the request for attorney’s fees under 42 U.S.C. § 406(b) is
reasonable under the law. See Gisbrecht v. Barnhart, 535 U.S. 789, 809 (2002). In making a
reasonableness determination, the Court should consider whether reasons exist for reducing the
amount of the fee. See Gisbrecht, 535 U.S. at 808–09. If enforcement of a contingent-fee
agreement would, considering time and effort expended by the lawyer, amount to a windfall in
counsel’s favor and against Plaintiff’s interest, then the Court may reduce the fee.

Here, Plaintiff’s counsel requests a fee of $28,425.00 for work done on this matter. (Doc.
No. 14). Counsel has previously provided an accounting of time expended, showing 26 hours of
attorney time on this case. (Doc. No. 12). Awarding the full amount requested by Plaintiff’s
counsel would result in reimbursement for attorney time at a rate of $1,093.27 per hour
($28,425.00/26 hours). Although this hourly rate appears to be high, the Court notes that
Plaintiff’s counsel’s law firm is located in New York City, where attorneys can demand much
higher rates than in North Carolina. In any event, reliance on the hourly rate is not the sole or
primary reason for determining fees in contingency fee cases such as this one. Rather, the Court
must also consider a number of other factors, none of which alone is determinative. See Mudd v.
Barnhart, 418 F.3d 424 (4th Cir. 2005). These factors include, but are not limited to, the overall
complexity of the case, the lawyering skills necessary to handle it effectively, the character of the
representation and the results achieved, whether counsel’s delay caused past-due benefits to
accumulate during the pendency of the court case, and whether past-due benefits are large in
comparison to the amount of time counsel spent on the case. Id. at 428.
Here, the Court has considered these factors and determines that the amount requested is
reasonable. Finally, the Court notes that at least one other decision from this district has held
that similar de facto hourly rates are not a windfall to counsel. See e.g., Jones v. Astrue, No.
1:09cv61, 2012 WL 2568083 (W.D.N.C. June 29, 2012) (awarding $37,634.75 as reasonable
attorney’s fees under 42 U.S.C. § 406(b) for 35.5 hours of time expended by counsel before the
Court, resulting in effective hourly rate of $1,060.13). In sum, the Court finds that the amount
requested by counsel is reasonable.
Plaintiff’s Motion for Attorney Fees under Section 406(b) of the Social Security Act, (Doc.
No. 14), is GRANTED. Plaintiff’s counsel shall be awarded fees under 42 U.S.C. § 406(b) in the

amount of $28,425.00, and Plaintiff’s counsel shall reimburse Plaintiff the $5,188.04 in fees
previously received pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
IT IS SO ORDERED.

Signed: October 18, 2019