Pinkston 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
JOSEPH P. PINKSTON,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL ASTRUE, Commissioner
Social Security Administration
Defendant.
No. CIV-11-246-FHS-KEW
OPINION AND ORDER
Plaintiff’s counsel filed a Motion For Attorney Fees Under 42
U.S.C. § 406(b) (Dkt. No. 28) on December 5, 2012.
Judgment was
entered in favor of Plaintiff on August 15, 2012, restoring
Plaintiff’s benefits and awarding him an amount equal to the
benefits
that
he
would
have
been
paid
termination of his disability benefits.
Notice
of
Plaintiff.
Award
was
issued
by
the
from
the
date
of
On November 18, 2012, a
Commissioner
in
favor
of
On December 2, 2012, a Notice of Change in Benefits
was issued by the Commissioner in favor of Plaintiff awarding him
additional benefits to correct an underpayment on the previous
calculation of benefits.
The Notices issued by the Commissioner
indicate that Plaintiff was awarded $59,238.32 in back benefits.
Attorney fees are awardable under 42 U.S.C. § 406(b)(1) when
a social security claimant is awarded disability benefits by
virtue of a judgment entered by a federal district court.
v.
Barnhart,
450
F.3d
493,
496
(10th
Cir.
2006).
McGraw
In
such
circumstances, the fourteen-day period running from the date of
1
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
fees
reasonable
benefits.”
under
time
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 her1 § 406(b)(1) motion for attorney
fees following the receipt of the November 18, 2012, Notice of
Award
containing
the
calculation
of
past-due
benefits.
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 the Notice of Award.
Counsel’s motion filed
on December 5, 2012 - seventeen days from the November 18, 2012,
issuance of the Notice of Award and three days from the December
2, 2012, Notice of Change in Benefits - 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
$14,809.58 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
1
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.
2
request for fees in the amount of $14,809.58.
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.
any
response
or
objection.
The
a
position
on
the
Plaintiff has not filed
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 $14,809.58 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 Under
42 U.S.C. § 406(b) (Dkt. No. 28) is granted in the amount of
$14,809.58.
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
($4,909.00)
previously
awarded under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d).
It is so ordered this 27th day of December, 2012.
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