Olinger v. Social Security Administration

Filing 28

OPINION AND ORDER Awarding Attorney's Fees to the Plaintiff Under 42 U.S.C. § 406(b) by Magistrate Judge Steven P. Shreder GRANTING 23 Motion for Relief Under Fed. R. Civ. P. 60(b)(6), and 24 Motion for Attorney Fees Under 42 U.S.C. § 406(b) by Charles David Olinger, Sr. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
CHARLES DAVID OLINGER, Sr.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,1
Defendant.

)
)
)
)
) Case No. CIV-15-042-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 over
$51,500.00 in past-due benefits. The Plaintiff’s attorney now seeks relief under Fed. R.
Civ. P. 60(b)(6) to file a motion for attorney fees under 42 U.S.C. § 406(b), and has filed
the motion for an award of attorney’s 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 Relief under Fed.
R. Civ. P. 60(b)(6) [Docket No. 23] and Plaintiff’s Motion for an Award of Attorney Fees

1

On January 23, 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.

Under 42 U.S.C. § 406(b) [Docket No. 24] should be GRANTED and that Plaintiff’s
attorney should be awarded $12,876.00 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
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 $12,876.00, approximately 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. 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
-2-

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 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
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
-3-

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 $12,876.00
in attorney’s fees is reasonable for the work done in this case. First, the attorney ably
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 $5,168.00 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 27.2 hours on this
appeal. See Docket No. 20, Ex. 1. This would equate to a rate of $473.38 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 $12,876.00 is
reasonable within the guidelines set by Gisbrecht.
The Notice of Award reflects that the Commissioner withheld $12,876.50 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 $12,876.00
-4-

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 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.”). Further, because the $12,876.00 awarded
herein pursuant to Section 406(b)(1) exceeds the $5,168.00 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 Relief under Fed. R. Civ. P. 60(b)(6)
[Docket No. 23] and Plaintiff’s Motion for an Award of Attorney Fees Pursuant to
42 U.S.C. § 406(b) [Docket No. 24] are hereby GRANTED. The Court approves an
award of attorney fees in the amount of $12,876.00 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 29th day of June, 2017.

-5-