Pollard v. Social Security Administration

Filing 35

OPINION and ORDER by Judge Frank H. Seay granting 33 Motion for Attorney Fees(trl, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STACEY POLLARD,

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Plaintiff,
v.
MICHAEL ASTRUE, Commissioner
Social Security Administration
Defendant.

No. CIV-08-434-FHS-KEW

OPINION AND ORDER

Plaintiff’s counsel filed a Motion For Attorney Fees Pursuant
to 42 U.S.C. § 406(b) (Dkt. No. 33) on January 28, 2012.
Judgment was entered in favor of Plaintiff on March 31, 2010,
remanding this action to the Commissioner under sentence four of
42 U.S.C. § 405(g).
favorable

decision

On remand, the Commissioner issued a fully
on

February

25,

2011,

disabled within the relevant time frames.

finding

Plaintiff

On March 21, 2011, and

November 20, 2011, the Commissioner issued decisions awarding
benefits to Plaintiff in the total amount of $38,072.80.

Attorney fees are awardable under 42 U.S.C. § 406(b)(1) when
a

social

security

claimant

is

awarded

disability

following a remand from a federal district court.
Barnhart,

450

F.3d

493,

(10th

496

Cir.

2006).

benefits
McGraw v.
In

such

circumstances, the fourteen-day period running from the date of
judgment under Fed.R.Civ.P. 54(d)(2)(B)(i) will have expired and
claimants, through counsel, rely on Rule 60(b)(6) to seek such
fees well after the expiration of the fourteen-day period.
1

Id.

at 505.

The McGraw Court noted that “[a] motion for an award of

fees under § 406(b)(1) should be filed within a reasonable time
of the Commissioner’s decision awarding benefits.”

On April

Id.

6, 2011, the Court entered an Opinion and Order (Dkt. No. 32)
granting

Plaintiff’s

counsel’s

Motion

for

Relief

Pursuant

to

Fed.R.Civ.P. 60(b)(6) and authorizing counsel to file his motion
for fees under § 406(b)(1) within sixty days of his receipt of
the Notice of Award containing the calculation of Plaintiff’s
past-due

benefits.

In

doing

so,

the

Court

noted

that

the

“decision awarding benefits” language referenced by the McGraw
Court necessarily includes not only the favorable decision on
disability,

but

the

actual

award

of

past-due

benefits.

Plaintiff’s counsel received the Notice of Award on November 29,
2011.

Counsel’s motion filed on January 28, 2012 - sixty days

from the November 29, 2011, receipt of the Notice of Award - is
therefore timely.

Plaintiff’s counsel has moved the Court to approve an
attorney fee award under 42 U.S.C. § 406(b)(1) in the amount of
$9,518.20 for counsel’s representation of Plaintiff before the
Court.

Counsel’s requested fees do not exceed either the amount

contracted for in the parties’ contingency agreement or the 25%
limitation of section 406(b).

Neither the Commissioner nor the

Plaintiff have presented any objection to Plaintiff’s counsel’s
request for fees in the amount of $9,518.20.

The Commissioner

has filed an informative response on the various points of law to
be

considered,

but

has

declined

to

take

reasonableness of counsel’s fee request.

a

position

on

the

Plaintiff has indicated

in a document entitled “Notice To Plaintiff” (Exhibit “E” to Doc.
No. 33) that she has no objection to the attorney fees requested
by her counsel.
the

record,

The Court has conducted an independent review of

including

the

contingency-fee
2

contract

between

counsel and Plaintiff, and counsel’s documented time records, and
concludes

counsel’s

motion

is

timely

and

that

the

requested

attorney fee amount of $9,518.20 is reasonable under the facts
and circumstances of this case given the nature and quality of
the representation and the results achieved.

See Gisbrecht v.

Barnhart, 535 U.S. 789, 807-809 (2002).

Consequently, Plaintiff’s counsel’s Motion For Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 33) is granted in the
amount of $9,518.20.1

It is so ordered this 15th day of February, 2012.

1

Plaintiff’s counsel has attached a United States
Department of Treasury document (Exhibit “D”) reflecting the
diversion and application of Plaintiff’s attorney fee award in
the amount of $5,565.40 under the Equal Access to Justice Act
(“EAJA”) to offset Plaintiff’s debt to the United States
Department of Education. Given the application of the EAJA
attorney fee award as an offset, there is no EAJA attorney fee to
refund to the Plaintiff. See Garnett v. Astrue, 2009 WL 93063
(M.D. Fla. 2009)(EAJA fees not subject to refund when they are
garnished to pay claimant’s federal debt). Thus, the Court will
not direct Plaintiff’s counsel to refund the smaller EAJA amount
to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986).
3