Bales v. Social Security Administration

Filing 32

OPINION & ORDER by Magistrate Judge Kimberly E. West granting 29 Motion for Attorney Fees(sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JASON W. BALES,

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

Case No. CIV-14-297-KEW

OPINION AND ORDER
This matter comes before this Court on the Motion for Attorney
Fees Pursuant to 42 U.S.C. § 406(b) filed by Timothy M. White, the
attorney for Plaintiff (Docket Entry #29).

Counsel requests that

he be awarded fees for legal work pursuant to 42 U.S.C. § 406(b) in
the amount of $7,476.05.

Counsel was employed by Plaintiff to

appeal the adverse decision rendered by Administrative Law Judge
presiding over the request for benefits.

To that end, Counsel

entered into a contract for compensation with Plaintiff, providing
for the payment of a fee equal to 25% of any past due benefits
ultimately awarded to Plaintiff.

Such contracts are recognized as

valid under the prevailing case authority.

Gisbrecht v. Barnhart,

535 U.S. 789, 807 (2002).
Counsel filed Plaintiff’s opening brief and reply.
was successful in this appeal.

Plaintiff

As a result, Plaintiff was awarded

attorneys’ fees in accordance with the Equal Access to Justice Act
(“EAJA”) for the efforts before this Court in the amount of
$7,715.36.

On remand, the ALJ entered a fully favorable decision

and awarded past due benefits of $29,904.21.
The amount awarded to counsel for successfully prosecuting an

appeal of a denial of Social Security benefits and obtaining
benefits for a claimant may not exceed 25% of past due benefits.
42 U.S.C. § 406(b)(1)(A). As in this case, Defendant is authorized
to withhold up to 25% of the past due benefits awarded to a
claimant for payment directly to the claimant’s attorney.
U.S.C. § 406(a)(4).

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The Tenth Circuit Court of Appeals determined

that the 25% amount is separate and apart from the amount awarded
at the agency level under 42 U.S.C. § 406(a).
F.3d 931, 937-938 (10th Cir. 2008).
full

award

of

25%

is

a

Wrenn v. Astrue, 525

The only condition upon the

requirement

that

the

court

review

contingency fee arrangements “to assure that they yield reasonable
results in particular cases.”

Id. at 938 (citations omitted).

Counsel’s requested fees do not exceed either the amount contracted
for in the contingency fee agreement or the limitations of §406(b).
Defendant generally does not take a position on awarding the
amount requested, but does state that she has no objection to the
award in this case.

Despite the fact the source for Counsel’s

compensation is a contingency fee contract, this Court has reviewed
the

contemporaneous

time

and

expense

records

based

upon

the

admonishment of the Tenth Circuit to do so and finds the time
expended to be reasonable and necessary in consideration of the
result obtained.
This Court has evaluated Counsel’s request for its timeliness.
In seeking an award under § 406(b), an attorney is required to
employ the provisions of Fed. R. Civ. P. 60(b)(6).
Barnhart, 450 F.3d 493, 505 (10th Cir. 2006).

McGraw v.

While relief under

this rule is considered extraordinary and reserved for exceptional
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circumstances, substantial justice is served by permitting its use
in the circumstance faced by counsel in seeking these fees.

Id.

To that end, any fee request pursued under §406(b) should be filed
“within a reasonable time of the Commissioner’s decision awarding
benefits.”

Id. (citation omitted).

In this case, Notice of Award was issued by Defendant on
October 13, 2016 and received by counsel on November 17, 2016.
Counsel filed the subject Motion on December 12, 2016.

This Court

cannot find the delay which occurred in this case warrants the
draconian result of denying an award of fees.

Therefore, the

request is considered timely.
IT IS THEREFORE ORDERED that the Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) filed by Timothy M. White, the
attorney for Plaintiff (Docket Entry #29) is hereby GRANTED.
Plaintiff’s counsel is awarded fees in the amount of $7,476.05 and
Defendant is directed to pay this fee directly to counsel from the
amount

of

past

due

benefits

withheld

for

that

purpose.

In

addition, Plaintiff’s counsel shall refund the smaller amount
between any EAJA fees already awarded and the § 406(b) fees awarded
in this decision to Plaintiff. Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986).
IT IS SO ORDERED this 23rd day of January, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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