Cly v. Social Security Administration

Filing 32

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 29 Motion for Attorney Fees (sdc, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
CHERYL ANNETTE CLY,

)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,1
Deputy Commissioner for Operations,
performing the duties and functions
not reserved to the Commissioner of
Social Security,

Case Number 16-CV-179-FHM

)

)
)
)
)
)

OPINION AND ORDER
Plaintiff’s Counsel’s Motion for Attorney Fees under 42 U.S.C. § 406(b), [Dkt.29], is
before the court. The Commissioner has no objection to Plaintiff’s motion. [Dkt. 31].
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. 30].
On April 25, 2017, the court remanded this case to the Commissioner for further
administrative action. [Dkt. 22]. On July 6, 2017 Plaintiff’s counsel was awarded EAJA
fees in the amount of $3,712.20. [Dkt. 26]. The Notice of Award dated May 26, 2018
indicated that the agency withheld $9,292.25 for payment of 406(b) attorney fees.
Plaintiff’s counsel seeks attorney fees in the amount of $7,004.45 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

1

Ms. Berryhill, Deputy Commissioner for Operations, is leading the Social Security Administration
pending the nomination and confirmation of a Commissioner. Pursuant to Federal Rule of Civil Procedure
25(d), Deputy Commissioner for Operations Berryhill should be substituted as the defendant in this action.
No further action need be taken to continue this suit by reason of the last sentence of the Social Security Act,
42 U.S.C. § 405(g).

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 $7,004.45 which is 18.8% 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 $357.37 per hour for 18.6 hours of attorney
2

work and 1 hour of paralegal work performed before the district court, which does not
amount to a windfall. When the amount of the EAJA fee award, $3,712.20, 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 $3,292.25 which is 8.85% percent of her
past due benefits.
Plaintiff’s Attorney’s Motion for Attorney Fees Under 42 U.S.C. § 406(b), [Dkt.29],
is GRANTED as follows:
Counsel is awarded $7,004.45 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
$3,712.20 to Plaintiff, which is the amount of the EAJA award.
SO ORDERED this 25th day of June, 2018.

3