Hopper v. Social Security Administration

Filing 32

OPINION AND ORDER by Magistrate Judge Steven P. Shreder granting 29 Motion for Attorney Fees(dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MICHAEL C. HOPPER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

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Case No. CIV-09-263-SPS

OPINION AND ORDER AWARDING
ATTORNEY’S FEES UNDER 42 U.S.C. § 406(b)
The Commissioner of the Social Security Administration denied an application for
benefits by the Plaintiff Michael C. Hopper. On appeal, this Court reversed the decision
of the Commissioner and remanded the case for further administrative proceedings,
which resulted in a disability determination and an award of $91,155.00 in past-due
benefits to the Plaintiff. The Plaintiff now seeks $21,500.00 in attorneys’ fees pursuant
to 42 U.S.C. § 406(b)(1). For the reasons set forth below, the Court finds that the
Plaintiff’s Attorneys’ Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b)
[Docket No. 29] should be GRANTED.
The Commissioner issued a notice of award detailing, inter alia, the Plaintiff’s
past-due benefits and the amount withheld for payment of attorneys’ fees on March 25,
2012. The Plaintiff’s motion (filed April 6, 2012) thus comes less than 30 days after
issuance of the notice of award. The Court therefore concludes for purposes of this case
that the motion for attorneys’ fees under Section 406(b) was filed “within a reasonable

time” as required by Fed. R. Civ. P. 60(c)(1), see McGraw v. Barnhart, 450 F.3d 493,
504-505 (10th Cir. 2006) (“Section 406(b) itself does not contain a time limit for fee
requests . . . We believe that the best option in these circumstances is for counsel to
employ Federal Rule of Civil Procedure 60(b)(6) in seeking a § 406(b)(1) fee award.”)
[citations omitted].
“Whenever a court renders a judgment favorable to a claimant under this
subchapter 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). This amount is exclusive of any award
to the Plaintiff’s agency representative under 42 U.S.C. § 406(a). See Wrenn v. Astrue,
525 F.3d 931, 937 (10th Cir. 2008) (“The Commissioner and court have the authority to
independently determine the appropriate attorney fees. Each has separate standards to
make this determination and is only limited as provided by statute. Based on the plain
language and statutory structure found in § 406, the 25% limitation on fees for court
representation found in § 406(b) is not itself limited by the amount of fees awarded by the
Commissioner.”) [citations omitted]. The request for $21,500.00 does not exceed 25% of
the Plaintiff’s past-due benefits, so the Court need only consider whether this amount is
reasonable for the work performed in this case. See Gisbrecht v. Barnhart, 535 U.S. 789,
807 (2002) (Ҥ 406(b) does not displace contingent-fee agreements as the primary means
by which fees are set for successfully representing Social Security benefits claimants in
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court. Rather, § 406(b) calls for court review of such arrangements as an independent
check, to assure that they yield reasonable results in particular cases.”).
Factors in determining the reasonableness of a Section 406(b) fee under Gisbrecht
include the character of the representation and results achieved, 535 U.S. at 808, citing
McGuire v. Sullivan, 873 F.2d 974, 983 (7th Cir. 1989) and Lewis v. Secretary of Health
& Human Services, 707 F.2d 246, 249-50 (6th Cir. 1983) (reducing the fee for
substandard work), whether counsel has caused unnecessary delay (thereby increasing the
amount of the Plaintiff’s past-due benefits), and whether the contingent fee is so large in
comparison to the amount of time spent on the case that it results in a windfall. Id., citing
Rodriguez v. Bowen, 865 F.2d 739, 746-47 (6th Cir. 1989) (noting fees are appropriately
reduced when undue delay increases past-due benefits or when the amount of the fee is
unconscionable in light of the work performed). Contemporaneous billing records may
be helpful in determining reasonableness. Id., citing Rodriguez, 865 F.2d at 741. Based
on these factors, the Court finds that a fee award of $21,500.00 is reasonable for the work
done on appeal in this case.
First, the Plaintiff’s attorneys ably represented him in this appeal and ultimately
obtained excellent results for him. The Court reversed the Commissioner’s decision and
remanded the case for further proceedings for reasons argued by the Plaintiff’s attorneys
and awarded the Plaintiff $4,808.10 in the instant case in attorneys’ fees as the prevailing
party pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). On remand, the
Plaintiff ultimately obtained a disability determination from the Commissioner and an
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award of past-due benefits in the amount of $91,155.00. Second, there is no evidence the
attorneys caused any delay that would have increased the Plaintiff’s past-due benefits.
Third, an award of $21,500.00 results in no windfall to the attorneys because the
attorneys spent approximately 27.5 hours working on this case and would thus earn
approximately $781.82 per hour, which rate would not be excessive given the contingent
nature of the representation and an appreciable risk of loss.

The Court therefore

concludes that the requested fee of $21,500.00 is reasonable within the guidelines set by
Gisbrecht.
The Commissioner withheld $22,788.75 from the Plaintiff’s past-due benefits.
Consequently, the amount retained by the Commissioner should be sufficient to satisfy
the $21,500.00 awarded by the Court pursuant to Section 406(b)(1). See Wrenn, 525
F.3d at 933 (“If the amount withheld by the Commissioner is insufficient to satisfy the
amount of fees determined reasonable by the court, the attorney must look to the
claimant, not the past-due benefits, to recover the difference.”). Further, because the
$21,500.00 awarded herein exceeds the $4,808.10 previously awarded by the Court under
the EAJA, the Plaintiff’s attorneys must refund the latter amount to the Plaintiff. See
Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
Accordingly, the Plaintiff’s Attorneys’ Motion for an Award of Attorney Fees
Under 42 U.S.C. § 406(b) [Docket No. 29] is hereby GRANTED. The Court hereby
approves an award of $21,500.00 in attorneys’ fees to the Plaintiff’s attorneys pursuant to
42 U.S.C. § 406(b)(1), and directs the Commissioner to pay the balance of the past-due
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benefits in his possession to the Plaintiff’s attorneys, who shall thereupon refund the full
amount previously awarded under the EAJA to the Plaintiff.
IT IS SO ORDERED this 20th day of April, 2012.

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