Allen v. Social Security Administration
OPINION AND ORDER Awarding Attorney's Fees to the Plaintiff Under 42 U.S.C. § 406(b) by Magistrate Judge Steven P. Shreder GRANTING 25 Motion to File Motion for Attorney Fees, and 26 Motion for Attorney Fees by Aaron Neil Allen. (ndd, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
AARON NEIL ALLEN,
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,1
Case No. CIV-15-200-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
$35,837.00 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)(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. 25] and Plaintiff’s Motion for an Award of Attorney Fees
under 42 U.S.C. § 406(b) [Docket No. 26] should be GRANTED and that Plaintiff’s
attorney should be awarded $8,959.25 in attorney’s fees.
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.
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 $8,959.25, 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 issuance 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 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 $8,959.25
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 $3,553.00 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 18.7 hours on this
appeal. See Docket No. 21, Ex. 1. This would equate to a rate of $479.10 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 $8,959.25 is
reasonable within the guidelines set by Gisbrecht.
The Notice of Award reflects that the Commissioner withheld $8,959.25 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 $8,959.25
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 $8,959.25 awarded herein
pursuant to Section 406(b)(1) exceeds the $3,553.00 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. 25] and Plaintiff’s Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b)
[Docket No. 26] are hereby GRANTED. The Court approves an award of attorney fees
in the amount of $8,959.25 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 12th day of July, 2017.
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