Sissom v. Social Security Administration
Filing
32
OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 28 Motion for Attorney Fees (FHM1, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
CHERYLE R. SISSOM,
Plaintiff,
vs.
Case No.07-CV-330-FHM
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
A Motion for Attorney Fees Pursuant to 42 U.S.C. §406(b)(1) [Dkt. 28] filed by
Plaintiff's counsel, Timothy M. White, is before the undersigned United States Magistrate
Judge for decision.
Counsel seeks approval of an attorney fee award of $ 10,675.25 pursuant to the
terms of 42 U.S.C. § 406(b) and the contingency fee agreement between Plaintiff and
counsel. Counsel has certified that Plaintiff has been advised of the fee request, and
Plaintiff has expressed she does not object to the requested fee award. [Dkt. 29]. The
Court previously granted Plaintiff's application for an award of $ 7,006.64 in fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, for the work counsel performed
before the Court.
[Dkt. 24].
The EAJA award was paid by the Social Security
Administration, at no cost to Plaintiff. Counsel has submitted a document signed by
Plaintiff, which contains Plaintiff’s acknowledgment that the attorney fee “will is 25% of my
past due benefit.” [Dkt. 2, p. 5].
Section 406(b)(1) allows an award of attorney fees, payable from the past due
benefits withheld by the Social Security Administration, when the district court has
remanded a Title II Social Security case for further proceedings and benefits are awarded
on remand. McGraw v. Barnhart, 450 F.3d 493 (10th Cir. 2006). 42 U.S.C. § 406(b)(1)(A)
provides that a court may award “a reasonable fee . . . not in excess of 25 percent of the
. . . past due benefits” awarded to the claimant. The fee is payable “out of, and not in
addition to, the amount of the [the] past-due benefits.” Section 406(b)(1)(A) does not
replace contingency fee agreements between Social Security claimants and their counsel.
Instead, that section requires the district court to review contingency fee agreements as
an “independent check” to assure that the agreement yields a reasonable result. Gisbrecht
v. Barnhart, 535 U.S. 789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). Section
406(b) provides a boundary that agreements are unenforceable to the extent that they
provide for fees exceeding 25 percent of the past-due benefits. Id.
In determining whether a fee resulting from a contingency fee contract is
reasonable, it is appropriate to adjust the attorney’s recovery based on the character of the
representation and the results the representation achieved. A reduction is in order if the
attorney is responsible for delay, so the attorney will not profit from the accumulation of
past-due benefits while the case is pending in court. In addition, if the benefits are large
in comparison to the amount of time counsel spent on the case, the fee award may be
adjusted. Id. 535 U.S. at 808, 122 S.Ct. at 1828. Further, the burden to prove the fee is
reasonable is placed upon the attorney seeking the fee. Id. at n.17.
The undersigned concludes that the requested fee award of $10,675.25 which is
25% of Plaintiff’s past due benefit award as reflected in the record submitted is reasonable.
That award comports with the agreement between counsel and Plaintiff and is within the
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statutory limits of §406(b). The fee yields an hourly rate of approximately $ 208 per hour
for 51.3 hours of work performed before the district court, which does not amount to a
windfall. Often a fee recovery in a percentage-based contingency fee contract will be
higher than the fee produced by a straight hourly rate agreement. That circumstance
serves to induce attorneys to risk providing legal services in cases where they may not be
paid. And finally, when the amount of the EAJA fee award, $ 7,006.64 is returned to
Plaintiff in accordance with Weakley v. Brown, 803 F.2d 575, 580 (10th Cir. 1986), the net
result is an out-of-pocket payment from Plaintiff of $ 3,668.61 which is 8.6% percent of her
past due benefits.
Plaintiff’s Attorney’s Motion for an Award of Attorney Fees Pursuant to 42 U.S.C.
§ 406(b), [Dkt. 28] is GRANTED as follows:
Counsel is awarded $10,675.25 to be paid from Plaintiff’s past due benefits being
withheld by the Commissioner for attorney fees. In accordance with Weakley v. Brown,
803 F.2d 575, 580 (10th Cir. 1986), upon receipt of payment, counsel is required to refund
$7,006.64 Plaintiff, which is the amount of the EAJA award.
SO ORDERED this 10th day of February, 2012.
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