Stone v. Social Security Administration

Filing 35

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 31 Motion for Attorney Fees (tjc, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
NICOLE PATRICIA STONE,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case Number 15-CV-57-FHM

OPINION AND ORDER
Plaintiff’s Counsel’s Motion for Attorney Fees under 42 U.S.C. § 406(b), [Dkt. 31],
is before the court. The Commissioner has no objection to Plaintiff’s motion. [Dkt. 32].
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. 34].
On November 20, 2015, the court remanded this case to the Commissioner for
further administrative action. [Dkt. 21]. On March 8, 2016 Plaintiff’s counsel was awarded
EAJA fees in the amount of $4,818.80. [Dkt. 28]. The Notice of Award dated December
19, 2017 indicated that the agency withheld $6,000.00 for payment of 406(b) attorney fees.
Plaintiff’s counsel seeks attorney fees in the amount of $18,000.00 for legal work performed
before the court on the merits.
In McGraw v. Barnhart, 450 F.3d 493, 496 (10th Cir. 2006), the Court ruled that
attorney fees are awardable under 42 U.S.C. § 406(b)(1) when the Social Security
Administration awards disability benefits to a claimant following a remand from the federal
court. In such a circumstance the authority of Fed. R. Civ. P. 60(b)(6) is employed to allow
counsel to seek fees under § 406(b)(1) long after the usual fourteen days allotted by Fed.

R. Civ. P. 54((d)(2)(B)(I) for filing a motion for attorney fees has expired. McGraw, 450
F.3d at 505. On March 30, 2017 the court granted counsel’s motion to extend the date for
filing the motion for fees under § 406(b) until 60 days after the Notice of Award was issued.
[Dkt. 30]. The motion for fees is timely filed.
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.
The court concludes that the requested fee award of $18,000.00 which is 13.5% of
the amount of back benefits Plaintiff will receive and less than the 25% of Plaintiff’s past
due benefit award as reflected in the record submitted is reasonable. That award comports
with the contract between counsel and Plaintiff and is within the statutory limits of §406(b).
The fee yields an hourly rate of approximately $627.17 per hour for 28.7 hours of work
performed before the district court, which does not amount to a windfall. When the amount
of the EAJA fee award, $4,818.80, 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 $13,181.20 which is 9.88% percent of her past due benefits.
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Plaintiff’s Attorney’s Motion for Attorney Fees Under 42 U.S.C. § 406(b), [Dkt.31],
is GRANTED as follows:
Counsel is awarded $18,000.00 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
$4,818.80 to Plaintiff, which is the amount of the EAJA award.
SO ORDERED this 8th day of February, 2018.

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