Perez v. Social Security Administration
Filing
27
OPINION AND ORDER by Magistrate Judge Steven P. Shreder granting 24 Motion for Relief Pursuant to Fed. R. Civ. P. 60(b)(6) for an Award of Attorney Fees Under 42 U.S.C. § 406(b). (pmb, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ROSA MAE PEREZ,
Plaintiff,
v.
COMMISSIONER of the Social
Security Administration,
Defendant.
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Case No. CIV-16-323-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 $87,290.00 in
past-due benefits. The Plaintiff’s attorney now seeks an award of fees pursuant to 42
U.S.C. § 406(b)(1), in the amount of $15,500.00. For the reasons set forth below, the Court
finds that the Plaintiff’s Attorney’s Motion for Relief Pursuant to Fed. R. Civ. P. 60(b)(6)
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 $15,500.00 in attorney’s fees.
The Court must initially determine if the motion at issue is timely. Section 406(b)
does not address when a motion for attorneys’ fees should be filed, so the Tenth Circuit
has instructed held that “the best option . . . is for counsel to employ Federal Rule of Civil
Procedure 60(b)(6) in seeking a § 406(b)(1) fee award.” McGraw v. Barnhart, 450 F.3d
493, 505 (10th Cir. 2006). Thus, a Section 406(b) motion for attorneys’ fees must be filed
within a reasonable time of receipt of the notice of award. See generally Fed. R. Civ. P.
60(c)(1) (“A motion under Rule 60(b) must be made within a reasonable time[.]”). In this
district, “a reasonable time” means within thirty days of issuance of the notice of award
unless there is good reason for a lengthier delay. See, e. g., 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.”). The motion for
attorneys’ fees in this case was filed on May 20, 2021, forty-four days after the Notice of
Award was issued on April 6, 2021. See Docket No. 24, Ex. 2. In his motion, counsel
indicates that he did not receive a copy of the Notice of Award until he contacted the Social
Security Administration district office, and that he received a copy of it on May 19, 2021.
See Docket No. 24, p. 2, n.3. Inasmuch as there are no timeliness objections by the
Commissioner and counsel demonstrated diligence in following up within a reasonable
time, the Court declines to find that the motion was not filed within a reasonable time under
Fed. R. Civ. P. 60(b)(6). The Court therefore finds that the motion for attorney fees under
Section 406(b) is timely.
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
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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 $15,500.00, approximately 17.8%
of the Plaintiff’s past-due benefits in accordance with the applicable attorney fee
agreement. 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
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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 noncontingentfee cases.”), citing Rodriguez, 865 F.2d at 741.
Based on the factors enunciated in Gisbrecht, the Court concludes that $15,500.00
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 $5,451.70 in attorney’s fees as the
prevailing party on appeal under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). See
Docket No. 23. This amount received 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 attorney 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
27.7 hours on this appeal. See Docket No. 24, Ex. 3. This would equate to a rate of $559.57
per hour at most, which is hardly excessive given that the fee was contingent, and the risk
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of loss was not negligible. The Court therefore concludes that the requested fee of
$15,500.00 is reasonable within the guidelines set by Gisbrecht.
It is not clear whether the Commissioner retains sufficient funds to pay the
$15,500.00 awarded to the Attorney herein under Section 406(b)(1). If, however, for any
reason the Commissioner may not have sufficient funds on hand to satisfy the $15,500.00
awarded herein, the Plaintiff’s attorney will have to recover the difference 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.”). Furthermore, because the $15,500.00 awarded
herein pursuant to Section 406(b)(1) exceeds the $5,451.70 previously received by the
Plaintiff as part of the EAJA fee award, the Plaintiff’s attorney must refund the latter
amount to the Plaintiff. 1 See Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.1986).
Accordingly, the Plaintiff’s Attorney’s Motion for Relief Pursuant to Fed. R. Civ.
P. 60(b)(6) for an Award of Attorney Fees Under 42 U.S.C. § 406(b) [Docket No. 24] is
hereby GRANTED. The Court approves an award of attorney fees in the amount of
$15,500.00 to the Plaintiff’s attorney pursuant to 42 U.S.C. § 406(b)(1) and directs the
The Court disapproves of any reference to an award to the Plaintiff under the EAJA as an offset
against attorney’s fees awarded to the Plaintiff’s attorneys under Section 406(b). An attorney may
not treat the EAJA award as a credit against the Plaintiff’s account or otherwise “net out” the EAJA
award against any future Section 406(b) award. See McGraw, 450 F.3d at 497 n. 2. See also
Gisbrecht, 535 U.S. at 796 (“Fee awards may be made under both prescriptions, but the claimant’s
attorney must ‘refun[d] to the claimant the amount of the smaller fee.’”), quoting Act of Aug. 5,
1985, Pub. L. 99-80, § 3, 99 Stat. 186 [emphasis added].
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Commissioner to pay to the Plaintiff’s attorney the balance of any past-due benefits in his
possession up to said amount.
IT IS SO ORDERED this 24th day of May, 2021.
______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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