Smith v. Social Security Administration
Filing
28
OPINION AND ORDER by Judge Frank H. Seay granting 25 Motion for Attorney Fees(trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BRENDA J. SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Defendant.
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No. CIV-10-059-FHS-SPS
OPINION AND ORDER
Plaintiff’s counsel filed a Motion For Attorney Fees Pursuant
to 42 U.S.C. § 406(b) (Dkt. No. 25) on April 12, 2013.
was
entered
in
favor
of
Plaintiff
on
September
Judgment
29,
2011,
remanding this action to the Commissioner under sentence four of
42
U.S.C.
§
405(g).
On
remand,
the
Commissioner
issued
a
February 28, 2012, decision finding in favor of Plaintiff and
determining
Supplemental
that
Plaintiff
Security
Income
was
entitled
(SSI)
to
benefits
disability
for
a
period
and
of
disability beginning on March 18, 2007. On February 4, 2013,
Plaintiff’s counsel received a letter from the Social Security
Administration notifying them that $5,352.00 had been withheld by
1
The Court has been informed by Defendant that on February
14, 2013, Carolyn W. Colvin became the Acting Commissioner of
Social Security. Pursuant to Rule 25 (d) of the Federal Rules of
Civil Procedure, Carolyn W. Colvin is automatically substituted
for Michael J. Asture as the defendant in this action. Thus,
this suit will proceed with this substitution in effect. See 42
U.S.C. Sec. 405 (g) (“Any action instituted in accordance with
this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or
any vacancy in such office.”)
1
the agency for the payment of attorney’s fees making the total
amount withheld for attorney fees $11, 352.00. ($6,000 previously
paid for 42 U.S.C. § 406(a) fees and $5,352.00 being withheld in
anticipation of § 406(b) fees).
$11,352.00
amount
This letter indicates that the
represents
25%
of
a
$45,408.00
past-due
benefits award to Plaintiff.
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.
benefits
McGraw v.
2006).
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.
at 505.
award
Id.
The McGraw Court noted, however, that “[a] motion for an
of
reasonable
fees
under
time
benefits.”
of
§
406(b)(1)
the
should
be
Commissioner’s
filed
decision
within
a
awarding
Id. The Court finds it appropriate to authorize
Plaintiff’s counsel to file her § 406(b)(1) motion for attorney
fees
following
notifying
the
counsel
receipt
of
of
the
the
February
withheld
corresponding past-due benefits amount.
fee
4,
2013,
amount
letter
and
the
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
is
entitled to file her motion within a reasonable time of being
informed of the past-due benefits amount.
before it, the Court finds the motion timely.
2
Based on the record
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
$10,200.00 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 $10,200.00.
The Commissioner
has filed an informative response on the various points of law to
be considered, but does not challenge the reasonableness of the
requested
objection.
fee.
Plaintiff
has
not
filed
any
response
or
The Court has conducted an independent review of the
record, including the contingency-fee contract between counsel
and
Plaintiff,
concludes
and
counsel’s
counsel’s
motion
documented
is
timely
and
time
that
records,
the
and
requested
attorney fee amount of $10,200.00 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); see also Wren v. Astrue,
525 F.3d 931, 937 (10th Cir. 2008)(“the 25% limitation of fees
for court representation found in § 406(b) is not itself limited
by the amount of fees awarded by the Commissioner”).
Consequently, Plaintiff’s counsel’s Motion For Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 25) is granted in the
amount of $10,200.00.
Pursuant to Weakley v. Bowen, 803 F.2d
575, 580 (10th Cir. 1986), Plaintiff's counsel is directed to
refund
to
previously
Plaintiff
awarded
the
under
smaller
the
amount
Equal
3
of
Access
fees
to
($4,919.90)
Justice
Act
(“EAJA”), 28 U.S.C. § 2412(d).
amount, without any
This refund is for the full EAJA
withholding, offset, or deduction.
It is so ordered this 15th day of May, 2013.
4
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