Francis v. Social Security Administration

Filing 20

OPINION AND ORDER by Magistrate Judge Jason A. Robertson granting 17 Motion for Attorney Fees. (jpc, Deputy Clerk)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF OKLAHOMA

KIMBERLEE FRANCIS,
Plaintiff,
v.
COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Case No. CIV-23-160-JAR

OPINION AND ORDER
This matter comes before this Court on Plaintiff’s Motion for Relief Pursuant
to Fed. R. Civ. P. 60(b)(6) and Motion for Attorney Fee Pursuant to 42 U.S.C. §
406(b) filed by Miles L. Mitzner, the attorney of record for Plaintiff (Docket Entry
#17). Counsel requests that he be awarded fees for legal work pursuant to 42 U.S.C.
§ 406(b) in the amount of $11,604.25. 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. As a result, Plaintiff was
awarded attorney’s fees in accordance with the Equal Access to Justice Act
(“EAJA”) for the efforts before this Court in the amount of $1,000.00. On remand,
the ALJ entered a fully favorable decision and awarded past due benefits of
$46,417.00.
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. 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. In this instance, Defendant points out the high hourly rate for the work
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performed resulting from the payment of 25% of the past due benefits. 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). 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 October 5, 2024.
Counsel filed his request for compensation on November 4, 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 for Relief Pursuant to
Fed. R. Civ. P. 60(b)(6) and Motion for Attorney Fee Pursuant to 42 U.S.C. § 406(b)
filed by Miles L. Mitzner, the attorney of record for Plaintiff (Docket Entry #17) is
hereby GRANTED.

Plaintiff’s counsel is awarded fees in the amount of
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$11,604.25. Counsel, however, has received EAJA fees in the amount of $1,000.00
which shall be refunded to Plaintiff by counsel. 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.
IT IS SO ORDERED this 6th day of March, 2025.

___________________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE

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