Wilson v. Social Security Administration
Filing
29
OPINION AND ORDER by Magistrate Judge Steven P. Shreder granting 26 Motion for Attorney Fees (dma, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
BETTY JEAN WILSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-10-198-SPS
OPINION AND ORDER AWARDING
ATTORNEY’S FEES UNDER 42 U.S.C. § 406(b)
The Plaintiff Betty Jean Wilson appealed the Commissioner of the Social Security
Administration’s denial of benefits. The Court reversed the Commissioner’s decision and
remanded the case to the Administrative Law Judge (“ALJ”) for further proceedings. On
remand, the Commissioner found the Plaintiff disabled and awarded $69,742.90 in pastdue benefits, out of which attorney’s fees have been sought pursuant to 42 U.S.C. §
406(b)(1). For the reasons set forth below, the Court concludes that Plaintiff’s Motion
For Attorney Fees Pursuant to 42 U.S.C. § 406(b) [Docket No. 26] should be GRANTED
and that Plaintiff’s counsel should be awarded $12,135.73 in attorney’s fees.
The Court observes that the Plaintiff filed this motion within thirty days of
receiving a copy of the notice of award and that the Commissioner takes no position as to
the reasonableness of Plaintiff’s request.
The Court finds that Plaintiff moved for
attorney’s fees within a reasonable time and that her motion was therefore timely
pursuant to Fed. R. Civ. P. 60. See, e. g., Harbert v. Astrue, 2010 WL 3238958 at *1 n.4
(E.D. Okla. Aug. 16, 2010) (slip op.) (“The Court notes here that while no explanation is
needed for a Section 406(b)(1) motion filed within thirty days of issuance of the notice of
appeal, lengthier delays will henceforth be closely scrutinized for reasonableness,
including the reasonableness of efforts made by appellate attorneys to obtain a copy of
any notice of award issued to separate agency counsel.”). See also 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]; see also Fed. R. Civ. P. 60(c)(1) (“A motion under Rule
60(b) must be made within a reasonable time[.]”); Bernal v. Astrue, 611 F. Supp. 2d
1217, 1220 (N.D. Okla. 2009) (“So it will be abundantly clear and so there will be no
question about the issue in the future, counsel is placed on notice that a reasonable time
for filing a motion under Rule 60(b)(6) for consideration of a motion for fees under
§406(b)(1) will be considered in terms of weeks or months, not years.”).
“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). The 25% limitation does not include any
fee awarded to the Plaintiff’s agency representative by the Commissioner under 42
U.S.C. § 406(a). See Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 937 (10th Cir. 2008)
(“The Commissioner and court have the authority to independently determine the
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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.”) [internal
citations omitted]. The Plaintiff’s fee request of $12,135.73 is 17.4% of her past-due
benefits, so the Court need only consider whether this is reasonable given the work
performed in this case. See Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (“[W]e
conclude, § 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
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 to consider in determining whether a requested fee is reasonable under
Gisbrecht include the character of the representation and the results achieved, id. 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 delay, 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
to counsel, 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. See id., citing Rodriguez,
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865 F.2d at 741. Based on these factors, the Court concludes that $12,135.73 is a
reasonable amount of attorneys’ fees for the work done in this case.
First, it is clear the Plaintiff was ably represented by his attorneys and obtained
excellent results in his appeal to this Court. The Plaintiff’s attorneys prepared a detailed
brief setting forth, inter alia, the substantive grounds for reversal ultimately adopted by
the Court.
As a result, the Plaintiff’s case was remanded to the ALJ for further
consideration and the Plaintiff was awarded attorney’s fees in the amount of $4,977.60 as
the prevailing party under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d). Ultimately, the Commissioner awarded disability benefits on remand, including
over $52,000.00 in past-due benefits the Plaintiff will receive even after attorney’s fees
are deducted. Second, there is no evidence counsel caused any unnecessary delay in
these proceedings.
Third, the requested fee does not result in any windfall to the
Plaintiff’s attorneys, who spent a total of 27.1 hours of attorney work on the Plaintiff’s
case before this Court. See Docket No. 26, Ex. 2. This equates to an hourly rate of
$447.81, and although this would be a premium rate if this were an hourly-rate case, it is
hardly excessive where the fee was contingent and the risk of loss was clearly not
negligible.
The Court therefore concludes that the requested fee of $12,135.73 is
reasonable within the guidelines set by Gisbrecht.
The Commissioner withheld $17,435.73 from the Plaintiff’s past-due benefits for
the payment of attorney’s fees, and has already awarded $5,300.00 to Plaintiff’s previous
attorney for work performed at the agency level. See Docket No. 26, Ex. 1. If the
Plaintiff’s attorney is unable to obtain the entire amount of attorney’s fees from the past-4-
due benefits withheld by the Commissioner, he will have to recover the difference from
the claimant. 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.”)
Nevertheless, because the amount awarded herein exceeds the $4,977.60 in EAJA fees
previously awarded to the Plaintiff’s attorneys, the Plaintiff’s attorneys must refund the
latter amount to the Plaintiff.1 See Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.1986).
Accordingly, Plaintiff’s Motion For Attorney Fees Pursuant to 42 U.S.C. § 406(b)
[Docket No. 26] is hereby GRANTED. The Court approves an award of attorney’s fees
in the amount of $12,135.73 to the Plaintiff’s attorney pursuant to 42 U.S.C. § 406(b)(1).
The Commissioner is hereby directed to pay the Plaintiff’s attorney the balance of the
past-due benefits in his possession. The Plaintiff’s attorney shall thereupon refund to the
Plaintiff the full amount previously awarded under the EAJA.
IT IS SO ORDERED this 4th day of September, 2012.
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The Court disapproves of any reference to an award to the Plaintiff under the EAJA as
an offset against attorney’s fees awarded to the Plaintiff’s attorneys under Section 406(b). An
attorney may not treat the EAJA award as a credit against the Plaintiff’s account or otherwise
“net out” the EAJA award against any future Section 406(b) award. See McGraw, 450 F.3d at
497 n. 2. See also Gisbrecht, 535 U.S. at 796 (“Fee awards may be made under both
prescriptions, but the claimant’s attorney must ‘refun[d] to the claimant the amount of the
smaller fee.’”), quoting Act of Aug. 5, 1985, Pub. L. 99-80, § 3, 99 Stat. 186 [emphasis added].
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