Back v. Social Security Administration
Filing
29
OPINION AND ORDER Awarding Attorney's Fees to the Plaintiff Under 42 U.S.C. § 406(b) by Magistrate Judge Steven P. Shreder GRANTING 25 Motion for Attorney Fees by Kimberly Ann Back. (ndd, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
KIMBERLY ANN BACK,
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)
Plaintiff,
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v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the Social )
Security Administration,1
)
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Defendant.
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Case No. CIV-14-262-SPS
OPINION AND ORDER AWARDING
ATTORNEY’S FEES UNDER 42 U.S.C. § 406(b)
The Plaintiff appealed the decision of the Commissioner of the Social Security
Administration denying her request for benefits. The Court reversed the Commissioner’s
decision and remanded the case for further proceedings. On remand, the Administrative
Law Judge (“ALJ”) found that the Plaintiff was disabled and awarded her $60,307.00 in
past-due benefits. The Plaintiff’s attorney now seeks an award of fees pursuant to 42
U.S.C. § 406(b)(1). For the reasons set forth below, the Court finds that the Plaintiff’s
Motion for an Award of Attorney Fees under 42 U.S.C. § 406(b) [Docket No. 25] should
be granted and that Plaintiff’s attorney should be awarded $15,076.75 in attorney’s fees.
When “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
1
On January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social
Security. In accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn
Colvin as the Defendant in this action.
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% does not include any fee awarded
by the Commissioner for representation in administrative proceedings pursuant to 42
U.S.C. § 406(a). Wrenn v. Astrue, 525 F.3d 931, 937 (10th Cir. 2008) (“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.”). The amount requested in this case is $15,076.75, exactly 25% of the
Plaintiff’s past-due benefits in accordance with the applicable attorney fee agreement,
and the motion was filed within thirty days of counsel’s receipt of the notice of award.
See 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.”); Fed. R. Civ. P. 60(c)(1)
(“A motion under Rule 60(b) must be made within a reasonable time[.]”). The Notice of
Award was issued on January 14, 2016, and counsel indicates that he received the Notice
of Award on January 20, 2017. The motion for attorney’s fees in this case was filed on
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February 17, 2017, but inasmuch as the motion is timely based on counsel’s receipt of the
Notice of Award and given the lack of timeliness objections by the Commissioner or the
Plaintiff, the Court declines to find that the motion was not filed within a reasonable time
under Fed. R. Civ. P. 60(b)(6). The Court notes, however, that future instances of delay
outside the thirty-day period may require proof of reasonableness. The Court therefore
finds that the motion for attorneys’ fees under Section 406(b) is timely.
Because the motion is timely, the Court therefore need only determine if this
amount is reasonable for the work performed in this case. Gisbrecht v. Barnhart, 535
U.S. 789, 807 (2002) (“[Section] 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 include: (i) the character of the representation and results achieved,
(ii) whether any dilatory conduct might allow attorneys to “profit from the accumulation
of benefits during the pendency of the case in court[,]” and (iii) whether “the benefits are
[so] large in comparison to the amount of time counsel spent on the case” that a windfall
results.
Id. at 808, citing McGuire v. Sullivan, 873 F.2d 974, 983 (7th Cir. 1989)
(reducing fees for substandard work); Lewis v. Secretary of Health & Human Services,
707 F.2d 246, 249-50 (6th Cir. 1983) (same); Rodriguez v. Bowen, 865 F.2d 739, 746-47
(6th Cir. 1989) (noting fees are appropriately reduced when undue delay increases pastdue benefits or fee is unconscionable in light of the work performed); Wells v. Sullivan,
907 F.2d 367, 372 (2nd Cir. 1990) (court should consider “whether the requested amount
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is so large as to be a windfall to the attorney”). Contemporaneous billing records may be
considered in determining reasonableness. Gisbrecht, 535 U.S. at 808 (“[T]he court may
require the claimant’s attorney to submit, not as a basis for satellite litigation, but as an
aid to the court’s assessment of the reasonableness of the fee yielded by the fee
agreement, a record of the hours spent representing the claimant and a statement of the
lawyer’s normal hourly billing charge for noncontingent-fee cases.”), citing Rodriguez,
865 F.2d at 741.
Based on the factors enunciated in Gisbrecht, the Court concludes that $15,076.75
in attorney’s fees is reasonable for the work done in this case. First, the attorney ably
represented the Plaintiff in her appeal to this Court and obtained excellent results on her
behalf, i. e., a reversal of the Commissioner’s decision denying benefits and remand for
further consideration. The Plaintiff’s success on appeal enabled her not only to prevail in
her quest for social security benefits, but also to obtain $5,500.00 in attorney’s fees as the
prevailing party on appeal under the Equal Access to Justice Act, 28 U.S.C. § 2412(d),
which will essentially reduce any amount awarded from her past-due benefits pursuant to
Section 406(b). Second, there is no evidence that the Plaintiff’s attorneys caused any
unnecessary delay in these proceedings. Third, the requested fee does not result in any
windfall to the Plaintiff’s attorney, who spent a total of 31.6 hours on this appeal. See
Docket No. 22, Ex. 1. This would equate to a rate of $477.11 per hour at most, which is
not excessive here given that the fee was contingent and the risk of loss was not
negligible.
The Court therefore concludes that the requested fee of $15,076.75 is
reasonable within the guidelines set by Gisbrecht.
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The notice of award reflects that the Commissioner withheld $15,076.75 from the
Plaintiff’s past-due benefits, including $6,000.00 from the Plaintiff’s past-due benefits
which were allocated to pay the Plaintiff’s representative at the agency level pursuant to
42 U.S.C. § 406(a). It thus appears from the record that the Commissioner does not
retain sufficient funds to pay the $15,076.75 awarded to the Attorney herein under
Section 406(b)(1). Contrary to the Commissioner’s unsubstantiated statement in the
Response Brief that the Court should award no more than the remaining amount the
Commissioner has on hand, if the Commissioner does not have sufficient funds on hand,
the Plaintiff’s attorney will have to recover the difference from the Plaintiff herself, not
from her past-due benefits. 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.”). Furthermore, because the $15,076.75 awarded herein pursuant to Section
406(b)(1) exceeds the $5,500.00 previously awarded to the Plaintiff under the EAJA, the
Plaintiff’s attorney must refund the latter amount to the Plaintiff. See Weakley v. Bowen,
803 F.2d 575, 580 (10th Cir.1986).
Accordingly, the Plaintiff’s Motion for an Award of Attorney Fees under 42
U.S.C. § 406(b) [Docket No. 25] is hereby GRANTED. The Court approves an award of
attorney fees in the amount of $15,076.75 to the Plaintiff’s attorney pursuant to 42 U.S.C.
§ 406(b)(1), and directs the Commissioner to pay to the Plaintiff’s attorney the balance of
any past-due benefits in her possession up to said amount. The Plaintiff’s attorney shall
thereupon refund to the Plaintiff the full amount previously awarded under the EAJA.
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IT IS SO ORDERED this 23rd day of March, 2017.
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