Parks v. Social Security Administration

Filing 29

OPINION AND ORDER by Magistrate Judge Jason A. Robertson granting 26 Motion for Attorney Fees. (jpc, Deputy Clerk)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF OKLAHOMA

CHAD PARKS,
Plaintiff,
v.
COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Case No. CIV-22-276-JAR

OPINION AND ORDER
This matter comes before this Court on Plaintiff’s Motion Attorney Fees under
42 U.S.C. § 406(b) and for relief pursuant to Fed. R. Civ. P. 60(b)(6) filed by Teresa
Grasso-Herlan, the attorney of record for Plaintiff (Docket Entry #26). Counsel
requests that she be awarded fees for legal work pursuant to 42 U.S.C. § 406(b) in
the amount of $25,163.00. 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 initiated this action on Plaintiff’s behalf in response to which the
Social Security Administration filed an unopposed motion to remand the case.
Consequently, Plaintiff was successful in this appeal. On remand, the ALJ entered

a fully favorable decision and awarded past due benefits of $129,454.70.
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. 42 U.S.C. § 406(a)(4).
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).
Wrenn v. Astrue, 525 F.3d 931, 937-938 (10th Cir. 2008). 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, stating that the Social Security Administration has no financial stake in
the result. As a result, Defendant neither supports nor opposes counsel’s request
for fees. 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.
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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). McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006). While
relief under this rule is considered extraordinary and reserved for exceptional
circumstances, substantial justice is served by permitting its use 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 August 13, 2024.
Counsel filed her request for compensation on September 5, 2024. This Court
cannot find the delay which occurred in this case warrants the draconian result of
denying an award of fees. Therefore, the request is considered timely.
IT IS THEREFORE ORDERED that Plaintiff’s Motion Attorney Fees under
42 U.S.C. § 406(b) and for relief pursuant to Fed. R. Civ. P. 60(b)(6) filed by Teresa
Grasso-Herlan, the attorney of record for Plaintiff (Docket Entry #26) is hereby
GRANTED. Plaintiff’s counsel is awarded fees in the amount of $25,163.00. By
separate Order, this Court found Plaintiff’s EAJA request to be moot since it would
have to be refunded to Plaintiff. Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.
1986). Defendant is ordered to pay the awarded fee directly to counsel from the
amount of past due benefits withheld for that purpose.

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IT IS SO ORDERED this 6th day of March, 2025.

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JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE

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