Arnold v. Social Security Administration

Filing 26

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 24 Motion for Attorney Fees (sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
FELICIA B. ARNOLD,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-15-120-KEW

OPINION AND ORDER
This matter comes before this Court on the Motion for Attorney
Fees Under 42 U.S.C. § 406(b) filed by Timothy M. White, the
attorney for Plaintiff (Docket Entry #24).

Counsel requests that

he be awarded fees for legal work pursuant to 42 U.S.C. § 406(b) in
the amount of $19,057.75.

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.
attorney’s

Plaintiff

As a result, Plaintiff was awarded

fees in accordance with the Equal Access to Justice Act

(“EAJA”) for the efforts before this Court in the amount of
$8,227.00.

On remand, the ALJ entered a fully favorable decision

and awarded past due benefits of $76,231.00.
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.
406(a)(4).

42 U.S.C. §

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).
931, 937-938 (10th Cir. 2008).

Wrenn v. Astrue, 525 F.3d

The only condition upon the full

award of 25% is a 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
circumstances, substantial justice is served by permitting its use
2

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 March
3, 2018 with a receive stamp on the document of March 5, 2018.
Counsel filed the subject Motion on April 20, 2018.

Counsel has

been admonished in the past to file § 406(b) Motions within thirty
(30) days of receiving the Notice of Award.

He did not do so in

this case and did not file a Rule 60(b) Motion.

On this occasion,

this Court will not impose the draconian result of denying fees on
the basis of untimeliness. However, counsel shall be mindful of the
requirements for timely filing in the future.
IT IS THEREFORE ORDERED the Motion for Attorney Fees Under 42
U.S.C. § 406(b) filed by Timothy M. White, the attorney for
Plaintiff (Docket Entry #24) is hereby GRANTED. Plaintiff’s counsel
is awarded fees in the amount of $19,057.75.

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 7th day of May, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

3