Sutton v. Commissioner of Social Security

Filing 23

ORDER: The 22 motion for attorney fees under § 406(b) is DENIED SUBJECT TO RECONSIDERATION upon submission of the supporting materials described above. Signed by Magistrate Judge Karen L. Litkovitz on 5/22/2017. (mr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

NORMAN F. SUTTON, III,
Plaintiff,

Case No. 1:15-cv-522
Dlott, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

ORDER

This matter is before the Court on plaintiff’s motion for attorney fees under the Social
Security Act, 42 U.S.C. § 406(b)(1) (Doc. 22). The Commissioner has not filed any opposition
to plaintiff’s motion.
On April 22, 2016, the Court granted the parties’ joint motion to remand and remanded
this matter for further administrative proceedings pursuant to Sentence Four of 42 U.S.C. §
405(g). (Doc. 18). On remand, the Commissioner determined that plaintiff was disabled. (See
Notice of Award, Doc. 22 at 8). The Court previously awarded plaintiff $1,500.00 for attorney
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 21). Plaintiff
represents that $6,000.00 in attorney fees have also been awarded for work performed at the
administrative level. (See Doc. 22 at 4). Plaintiff represents that acting pursuant to §
406(b)(1)(A), the Commissioner withheld 25 percent of past-due benefits—or $14,162.25—as a
potential contingency fee to be awarded to plaintiff’s counsel. (See Doc. 22 at 4, 9). From that
amount, plaintiff now seeks an award of $6,662.25 in attorney fees available under § 406(b) for
22.75 hours of work that plaintiff represents was performed before the Court. (See Doc. 22 at 45). The $6,662.25 requested represents 25 percent of plaintiff’s past-due benefits ($14,162.25),

less the amount awarded by the Commissioner for work performed at the administrative level
($6,000), and less the amount of EAJA fees previously received ($1,500.00). (See id.).
Plaintiff has not supported the motion with a time record from plaintiff’s counsel
detailing the amount of time counsel spent on each task related to the prosecution of this case in
the district court. Nor has plaintiff provided an affidavit or other evidence from counsel in
support of the requested hourly rate, including counsel’s non-contingent fee hourly rate. Thus,
the Court is presently unable to determine whether the hours counsel spent on this case and the
hourly rate requested are reasonable.
Based on the foregoing, the motion for attorney fees under § 406(b) is DENIED
SUBJECT TO RECONSIDERATION upon submission of the supporting materials described
above.
IT IS SO ORDERED.

5/22/2017
Date: _________________________

/s Karen L. Litkovitz
__________________________________
Karen L. Litkovitz
United States Magistrate Judge

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