Ward v. Social Security Administration

Filing 30

OPINION AND ORDER by Judge Frank H. Seay: granting (Dkt No 28 ) Plaintiff's Counsel's Motion for Attorney Fees (neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BILLY RAY WARD,

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

No. CIV-13-128-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 16, 2016.

Judgment was

entered in favor of Plaintiff on September 25, 2014 remanding this
action back to the Commissioner under sentence four of 42 U.S.C. '
405(g). On March 13, 2016, Plaintiff received a fully favorable
decision from the ALJ.
July 31, 2004.

The ALJ found that she had been disabled since

The Notice of Award found total back benefits awarded

to Plaintiff was $93,469.90.

The Notice of Award also indicated that

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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)
(AAny 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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$23,367.48 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 benefits following
a remand from a federal district court.

McGraw v. Barnhart, 450 F.3d

493, 496 (10th Cir. 2006).

In such circumstances, the fourteen-day

period

date

running

from

the

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.

Id. at 505.

The McGraw Court noted,

however, that A[a] motion for an award of fees under ' 406(b)(1) should
be filed within a reasonable time of the Commissioner=s decision
awarding benefits.@

Id. The Notice of Award was dated March 13, 2016.

The Plaintiff=s Motion for Attorney Fees was filed 3 days after the
receipt of the Notice of Award letter. The Court finds the Plaintiff=s
Motion is timely filed.
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 $15,000.00 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).

Neither the Commissioner nor the Plaintiff have presented

any objection to Plaintiff=s counsel=s request for fees in the amount
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of $15,000.00.

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 fee. 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 $15,000.00 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); see also Wren v. Astrue, 525
F.3d 931, 937 (10th Cir. 2008)(Athe 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. 28) is granted in the amount
of $15,000.00.

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 ($4,091.90) previously awarded under the
Equal Access to Justice Act (AEAJA@), 28 U.S.C. ' 2412(d).

This

refund is for the full EAJA amount, without any withholding, offset,
or deduction.

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It is so ordered this 22nd day of March, 2016.

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