Brock v. Social Security Administration

Filing 30

OPINION AND ORDER by Judge Frank H. Seay granting 28 Motion for Attorney Fees(dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

DEBRA F. BROCK,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN1, Acting
Commissioner Social Security
Administration,
Defendant.

No. CIV-11-129-FHS-SPS

OPINION AND ORDER

Plaintiff’s counsel filed a Motion For Attorney Fees Pursuant
to 42 U.S.C. § 406(b) (Dkt. No. 28) on March 11, 2014.
was

entered

in

favor

of

Plaintiff

on

September

Judgment
24,

2012,

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

On remand, the Commissioner issued a March

4, 2014, decision finding in favor of Plaintiff and determining
that

Plaintiff

was

entitled

to

disability

benefits

beginning

October 2005. On March 4, 2014, Plaintiff’s counsel received a
letter from the Social Security Administration notifying them

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. Astrue 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.”)
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that $6,000.00 had been withheld by the agency for the payment of
attorney’s fees.
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

Commissioner’s

be

filed

decision

within

a

awarding

Id. The Court finds it appropriate to authorize

Plaintiff’s counsel to file his § 406(b)(1) motion for attorney
fees following the receipt of the March 4, 2014, letter notifying
counsel of the withheld fee amount.

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 his motion within a reasonable time of being
informed of the past-due benefits amount. This motion was filed
March 11, 2014.
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
$13,150.50 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
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request for fees in the amount of $13,150.50.

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 fee. Plaintiff has not filed any response or objection.
The Court has conducted an independent review of the record,
including

the

contingency-fee

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

$13,150.50

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 $13,150.50

Pursuant to Weakley v. Bowen, 803 F.2d 575,

580 (10th Cir. 1986), Plaintiff's counsel is directed to refund
to Plaintiff the smaller amount of fees ($6,210.10) previously
awarded under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d).

This refund is for the full EAJA amount, without any

withholding, offset, or deduction.

It is so ordered this 25th day of March, 2014.

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