Barton v. Social Security Administration

Filing 34

OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 30 Motion for Attorney Fees (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA DENISE FAYE BARTON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) )

Case No. 08-CV-461-PJC

OPINION AND ORDER Before the Court is Plaintif f Denise Faye Barton's ("Barton") Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. #30). Barton's counsel ("Counsel") seeks approval of an attorney fee award of $8,201.88 pursuant to the terms of 42 U.S.C. § 406(b) and the contingency fee contract between Barton and her counsel. Counsel has certified that Plaintiff has been advised of the fee request, and Plaintiff has expressed that she does not object to an additional fee award. (Dkt. #31) The Motion is GRANTED as provided herein. Barton appealed the administrative denial of her application for Social Security benefits to this Court. By Order of this Court, the administrative denial of Plaintiff's application for benefits was reversed and remanded to the Commissioner for further administrative proceedings. (Dkt. ## 20 & 21). On October 7, 2009, the Court granted Barton's application for an award of $5,789.00 in fees under the Equal Access to Justice Ac t ( "EAJA"), 28 U.S.C. § 2412, for the work counsel performed before the Court. (Dkt. #25). The EAJA award was paid by the Social Security Administration at no cost to Plaintiff. Upon rem and to the C ommissioner, B arton received a fully f avorable decision by the Administrative Law Judge ("ALJ") dated January28, 2010, finding that she had been disabled since

November 5, 2005, her alle ged onset date of disability. On April 21, 2010, the Commissioner notified Barton that she had $32,807.52 in past due disability insurance benefits ("DIB"). Counsel agrees that the smaller award - the Section 406(b) award granted pursuant to Plaintiff's Motion, or the previously-granted EAJA fees -will be refunded to Plaintiff. Counsel filed a certificate of notice to Barton of his requested fee and Barton did not object to the request. (Dkt. #31). Counsel, accordingly, is requesting an award of $8,201.88, representing the withheld amount of 25% of the total past-due benefits to Barton. Defendant Commissioner declines to assert a position on Barton's motion, noting that he is not the true party in interest. Gisbrecht v. Barnhart, 535 U.S. 789, 798 n. 6 (2002) (The Commissioner "has no direct f inancial stake in the answer to the §406(b) question; instead, [ he] plays a part in the fee determination resembling that of a trustee for the claimants."). When a claimant appeals to court and is successful, the attorney representing the claimant can be awarded fees for work before the court, up to 25% of the past due benefit award. Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 933 (10th Cir. 2008) (citing 42 U.S.C. § 406(b)(1)(A)). The court must review a request for fees as an indepe dent check that they are reasonable in a particular n case. Gisbrecht, 535 U.S. at 808. The Court concludes that a fee award of $8,201.88 is reasonable. That am unt is consistent o with the contract between Counsel and Barton andis within the statutory limits of Section 406(b). Counsel spent 32.9 hours on the work before this Court, and the requested fee award yields an hourly rate of approximately $369.14/hour ($8, 201.88 ÷ 32.9 hours = $249.30/hour). While this amount is high, it is not a windf all that should be downwardly adjusted by the Court pursuant to Gisbrecht. Contingency fee contracts often result in a higher hourly fee recovery than a non-

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contingent hourly fee would produce, but that is because contingency fee contracts have the risk that there will be no fee recovery, and the possibility of a higher recovery balances the risk of no recovery. Additionally, when the amount of the EAJA fee award, $5,789.00, is returned to Plaintiff in accordance with Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986), the net result is a fee that is an out-of-pocket expense to Plai ntiff of $2,412.88 ($8,201.88 - $5,789.00 = $2,412.88), for an hourly rate of approximately $188/hour and only 7.35%of her total retroactive benefits ($2, 412.88 ÷ 32,807.52 = 7.35%). The Court finds $8,201.88 is a reasonable attorneyfee and is hereby awarded to Plaintiff's Counsel. Upon receipt of payment, Counsel is required to refund to Plaintiff the EAJA fee award of $5,789.00, pursuant to Weakley. IT IS SO ORDERED, this 16th day of August, 2010.

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