Bales v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 33 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.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-14-297-KEW
OPINION AND ORDER
This matter comes before this Court on the Amended Motion for
Attorney Fees Pursuant to 42 U.S.C. § 406(b) filed by Timothy M.
White, the attorney for Plaintiff (Docket Entry #33).
Counsel
requests that he be awarded fees for legal work pursuant to 42
U.S.C. § 406(b) in the amount of $20,478.30.
by
Plaintiff
to
appeal
the
adverse
Counsel was employed
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 $81,913.20.
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
2
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 June
2, 2017.
Counsel filed the subject Amended Motion on July 25,
2017. 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.
This Court acknowledges the fact that Plaintiff’s attorney was
previously awarded §406(b) fees based upon an earlier calculation
of past due benefits. This award supercedes the prior award in its
entirety.
IT IS THEREFORE ORDERED that the Amended Motion for Attorney
Fees Pursuant to 42 U.S.C. § 406(b) filed by Timothy M. White, the
attorney for Plaintiff (Docket Entry #33) is hereby GRANTED.
Plaintiff’s counsel is awarded fees in the amount of $20,478.30 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). Additionally, the amount awarded in this Opinion
and Order supercedes the award reflected in the Opinion and Order
entered January 23, 2017.
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IT IS SO ORDERED this 13th day of September, 2017.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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