Havenar v. Social Security Administration

Filing 28

OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 22 Motion for Attorney Fees (sdc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
RICHARD C. HAVENER,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No. 13-CV-692-PJC

OPINION AND ORDER
Before the Court is the Motion for Attorney Fees Pursuant to 42 U.S.C. §406(b) filed by
plaintiff’s counsel. [Dkt. #22]. Plaintiff’s counsel seeks $18,000 in attorney’s fees pursuant to
the terms of 42 U.S.C. § 406(b) and the contract between plaintiff and counsel. Id. Counsel has
certified that plaintiff has been advised of the fee request, as required by General Order 07-06,
and has filed plaintiff’s signature stating that he does not object to the attorney’s fees request. Id.
at Ex. C. The Motion is GRANTED as provided herein.
Procedural History
Plaintiff applied for Title II Disability Insurance Benefits and Title XVI, Supplemental
Security Income Benefits on March 15, 2006 alleging disability beginning January 15, 2006. He
appeared pro se at an ALJ hearing on May 20, 2008 and received an unfavorable decision on
June 9, 2008. On August 7, 2008, plaintiff retained attorney Nathan E. Barnard, who filed a
Request for Review to the Appeals Council (“AC”). The request was denied.

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Effective January 23, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting
Commissioner of the Social Security Administration and is substituted as defendant in this action
pursuant to Federal Rule of Civil Procedure 25(d).

On May19, 2009, plaintiff, through counsel, appealed the AC denial to this court. On
September 21, 2010, the court denied the appeal and entered judgment in favor of the
Commissioner. Plaintiff, through counsel, appealed the district court decision, and on September
9, 2011, the Tenth Circuit reversed the district court decision and remanded the case to the
Commissioner.
On June 5, 2012, plaintiff, represented by counsel, presented his case at a second ALJ
hearing. The ALJ issued an unfavorable decision on July 27, 2012. On August 24, 2012, the
decision was appealed to the AC, which denied the case on August 15, 2013. On October 21,
2013, the decision was appealed to the District Court, which entered judgment in favor of
plaintiff on January 27, 2015. [Dkt. ##20-21].
On August 7, 2015, plaintiff had a third ALJ hearing with a different ALJ, who awarded
plaintiff a closed period of benefits (January 15, 2006, through March 30, 2103), because
plaintiff had returned to work. The Commissioner determined that Plaintiff was entitled to
disability benefits, including an award of past-due SSI and DIB benefits of $118,754. [Dkt. #342].
An application for attorney fees under the Equal Access to Justice Act (“EAJA”) was
filed and plaintiff’s counsel was awarded $7,599.80 on April 3, 2012. [Dkt. #22, Ex. B].
Plaintiff’s counsel advises that currently a request for approval of attorney fees pursuant to 42
U.S.C. § 406(a) in the amount of $9,647.35 is pending approval before ALJ David Engel in the
Tulsa Office of Disability Adjudication and Review.
Plaintiff’s counsel seeks approval of attorney fees in the amount of $18,000, or
approximately 15.16 percent of the past-due benefits. [Dkt. #22 at 3]. Plaintiff has been notified
of the pending motion and does not object to the fee request. [Dkt. #22, Ex. C].

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In her response, the Commissioner states that to the extent plaintiff’s counsel attempts to
base the reasonableness of his 406(b) request on the net fee (i.e., the fee after subtraction of
EAJA fees), the court must find it without merit, [Dkt. #25 at 3-4]. Otherwise, the
Commissioner posts no objection to the requested fee.
When a plaintiff appeals to the court and is successful, the attorney representing the
plaintiff can be awarded fees for work before the court up to 25 percent 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 independent check that the fees are
reasonable in a particular case. Gisbrecht v. Barnhart, 535 U.S. 789, 807-08 (2002). Factors to
be considered include (1) whether the legal work was substandard or performed in a professional
manner; (2) whether the attorney caused an unreasonable delay which resulted in a larger fee;
and (3) whether the fee amount is unexpectedly large or results in such an unforeseen profit by
the attorney that the fee is unconscionable. Id.
The Court finds that a fee award of $18,000 is reasonable. The legal work performed by
plaintiff’s counsel resulted in reversal of the agency’s previous denials and a finding on remand
that plaintiff was disabled and entitled to disability benefits totaling $118,754. Further, the
amount sought is less than the amount provided by the contract between counsel and plaintiff
and is within the statutory limits of Section 406(b). [Dkt. #34-1]. According to counsel’s
itemization of billing hours, 43 attorney hours and 19.65 paralegal hours were devoted to the
court case. [Dkt. #27].
Using the attorney time only, the requested fee award yields an hourly rate of $418.60.
This rate does not result a windfall 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 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 total amount of the EAJA fee award, $7,669.80, 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 Plaintiff of $10,330.20, which is approximately 8.7 percent of
the past due and auxiliary benefits. The undersigned finds the amount of the award to be
reasonable.
Plaintiff’s Motion [Dkt. #34] is GRANTED. The Court finds $18,000.00 is a reasonable
attorney fee and is hereby awarded to Plaintiff’s counsel. Upon receipt of payment, counsel is
required to refund to Plaintiff the EAJA fees pursuant to Weakley.
IT IS SO ORDERED, this 28th day of March 2017.

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