Bodine v. Social Security Administration

Filing 28

OPINION AND ORDER by Judge Frank H. Seay granting 26 Motion for Attorney Fees(trl, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DAVID SHILOH BODINE,

)
)
)
)
)
)
)
)
)
)

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

No. CIV-10-142-FHS-KEW

OPINION AND ORDER

On January 7, 2013, Plaintiff’s counsel filed a Motion For
Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 26).
August

2,

2011,

judgment

was

entered

in

favor

of

On

Plaintiff

remanding this action to the Commissioner under sentence four of
42 U.S.C. § 405(g).

On remand, the Commissioner issued a fully

favorable decision on March 8, 2012, finding Plaintiff has been
under a disability as defined in the Social Security Act since
July 23, 2006.

On October 29, 2012, a Notice of Award was issued

in favor of Plaintiff with an award of back benefits in the
amount of $101,387.00.

On January 4, 2013, Plaintiff’s counsel

received the Notice of Award.

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
1

claimants, through counsel, rely on Rule 60(b)(6) to seek such
fees well after the expiration of the fourteen-day period.

The McGraw Court noted, however, that “[a] motion for an

at 505.
award

Id.

of

fees

under

reasonable

time

benefits.”

Id.

of
The

§

406(b)(1)

the

should

Commissioner’s

“decision

awarding

be

filed

within

a

decision

awarding

benefits”

language

referenced by the McGraw Court necessarily includes not only the
favorable decision on disability, but the actual award of pastdue benefits.

Thus, the Court finds it appropriate to authorize

Plaintiff’s counsel to file her1 § 406(b)(1) motion for attorney
fees following her receipt of the October 29, 2012, Notice of
Award containing the calculation of past-due benefits.
regard,

the

Court

notes

the

diligent

efforts

In this

undertaken

by

Plaintiff’s counsel in attempting to secure a copy of the Notice
of Award.

As detailed by counsel in the motion, through no fault

of counsel or the client, the Notice of Award was not forwarded
to counsel until January 4, 2013.

Counsel’s motion filed on

January 7, 2013 - three days from counsel’s January 4, 2013,
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
$22,000.00 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).

1

Neither the Commissioner nor the

Although the instant attorney fee motion was filed by
attorney Gayle L. Troutman, of the firm, Troutman & Troutman,
P.C., the Court notes that attorney Steve A. Troutman is the
firm’s representative signatory to the fee contract with
Plaintiff and that the time records submitted in support of this
motion reflect that Darren T. Rackley performed most of the legal
work in connection with the firm’s representation of Plaintiff.
2

Plaintiff have presented any objection to Plaintiff’s counsel’s
request for fees in the amount of $22,000.00.

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

The Court has conducted

an independent review of the record, including the contingencyfee

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 $22,000.00 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).

Consequently, Plaintiff’s counsel’s Motion For Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 26) is granted in the
amount of $22,000.00.

Pursuant to Weakley v. Bowen, 803 F.2d

575, 580 (10th Cir. 1986), Plaintiff's counsel is directed to
refund

to

Plaintiff

previously

awarded

the
under

smaller
the

amount

Equal

of

Access

fees
to

($6,505.40)
Justice

(“EAJA”), 28 U.S.C. § 2412(d).

It is so ordered this 29th day of January, 2013.

3

Act