Fennell v. Social Security Administration
OPINION AND ORDER by Magistrate Judge Steven P. Shreder GRANTING 24 Plaintiff's Motion for Attorney Fees. (tls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
BOBBIE JEAN FENNELL,
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,1
) Case No. 6:14-cv-492-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 over $34,663.40
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 Plaintiff’s Motion
for an Award of Attorney Fees Under 42 U.S.C. § 406(b) [Docket No. 24] should be
granted and that Plaintiff’s attorney should be awarded $8,665.85 in attorney’s fees.
On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of the Social Security
Administration. Under Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill
should be substituted for Carolyn W. Colvin as Defendant in this suit. No further action is needed
to continue this suit because of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).
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
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 $8,665.85, 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 the attorney’s receipt of the Notice
of Award. 2 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
The Notice of Award in this case was issued December 13, 2016, but because counsel did not
represent the claimant at the administrative level, he did not receive a copy of the Notice of Award
until January 20, 2017.
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) (“[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 $8,665.85 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 $4,235.00 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 22.5 hours on this appeal. See
Docket No. 21, Ex. 1. This would equate to a rate of $385.15 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 $8,665.85 is reasonable within the
guidelines set by Gisbrecht.
The Notice of Award reflects that the Commissioner withheld $8,665.85 from the
Plaintiff’s past-due benefits for payment of attorneys’ fees, including $6,000 that has
previously been paid to the Plaintiff’s representative at the agency level. It thus appears
from the record that the Commissioner retains sufficient funds to pay the $8,665.85
awarded to the Attorney herein. But if for any reason the Commissioner does not have
sufficient funds on hand, the Plaintiff’s attorneys must recover any balance due 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 pastdue benefits, to recover the difference.”). Furthermore, because the $8,665.85 awarded
herein pursuant to Section 406(b)(1) exceeds the $4,235.00 previously awarded to the
Plaintiff under the EAJA, the Plaintiff’s attorneys 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 Attorney Fees Pursuant to 42 U.S.C.
§ 406(b) [Docket No. 24] is hereby GRANTED. The Court approves an award of attorney
fees in the amount of $8,665.85 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 3rd day of March, 2017.
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