Tarver v. Social Security Administration

Filing 33

OPINION AND ORDER Awarding Attorney's Fees to the Plaintiff Under 42 U.S.C. § 406(b) by Magistrate Judge Steven P. Shreder GRANTING 29 Motion for Attorney Fees by Wade Doug Tarver. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
WADE DOUG TARVER,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the Social )
Security Administration,1
)
)
Defendant.
)

Case No. CIV-14-292-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 his 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 him $75,571.56 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. 29] should
be granted and that Plaintiff’s attorney should be awarded $18,892.89 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 $18,892.89, exactly 25% of the
Plaintiff’s past-due benefits in accordance with the applicable attorney fee agreement,
and the motion was timely filed within thirty days following issuance 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 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)
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(“[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 past-due 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 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 $18,892.89
in attorney’s fees is reasonable for the work done in this case. First, the attorney ably
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represented the Plaintiff in his appeal to this Court and obtained excellent results on his
behalf, i. e., a reversal of the Commissioner’s decision denying benefits and remand for
further consideration. The Plaintiff’s success on appeal enabled him not only to prevail
in his quest for social security benefits, but also to obtain $5,900.00 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 his 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 33.3 hours on this
appeal. See Docket No. 26, Ex. 1. This would equate to a rate of $567.35 per hour at
most, which is hardly excessive given that the fee was contingent and the risk of loss was
not negligible. The Court therefore concludes that the requested fee of $18,892.89 is
reasonable within the guidelines set by Gisbrecht.
It is not clear from the record whether the Commissioner retains sufficient funds to
pay the $18,892.89 awarded to the Attorney herein under Section 406(b)(1). If for any
reason the Commissioner may not have sufficient funds on hand to satisfy the $18,892.89
awarded herein, the Plaintiff’s attorney will have to recover the difference from the
Plaintiff himself, not from his 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 pastdue benefits, to recover the difference.”). Furthermore, because the $18,892.89 awarded
herein pursuant to Section 406(b)(1) exceeds the $5,900.00 previously awarded to the
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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. 29] is hereby GRANTED. The Court approves an award of
attorney fees in the amount of $18,892.89 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.
IT IS SO ORDERED this 31st day of March, 2017.

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