Carr v. Social Security Administration

Filing 81

OPINION AND ORDER by Magistrate Judge Christine D Little ; granting 77 Motion for Attorney Fees (Re: 77 MOTION for Attorney Fees to file for fees under 42 U.S.C. 406b ) (CDL1, Chambers)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
WILLIE E.C.,
Plaintiff,
vs.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 18-CV-272-CDL

OPINION AND ORDER
Before the Court is the motion of plaintiff’s counsel for an award of attorney fees in
the amount of $16,095.48, pursuant to 42 U.S.C. § 406(b), for contingent legal work
performed before the courts. (Doc. 77). Upon review of the request and all filings related
thereto, the plaintiff’s lack of objection, the defendant’s response (Doc. 78), in which
defendant indicated she does not take a position as to the motion, and consistent with the
law governing fee awards under § 406(b), the Court finds and concludes that the motion
(Doc. 77) should be granted.1
I.

Background
The extensive litigation history of this case is set forth in the Court’s earlier Opinion

and Order denying fees under the Equal Access to Justice Act. (See Doc. 68 at 1-5). In
short, following remand to the Social Security Administration, the defendant determined

Plaintiff’s counsel has submitted by affidavit information showing that the requisite
notice was provided to the plaintiff, and that plaintiff is aware of the fee request but has
not responded to counsel’s attempts to obtain a response to the motion for fees. (See Doc.
79, 80). By failing to respond or to notify the court otherwise, the court finds that the
plaintiff has waived any objection he might have expressed concerning the motion for fees
under § 406(b).

1

that plaintiff was entitled to monthly disability benefits beginning January 2014 and issued
a Notice of Award on September 13, 2023. (Doc. 77-2). The agency awarded the plaintiff
$64,381.90 in past-due benefits. (Id. at 3). The plaintiff’s attorney-fee contract with his
counsel provides that claimant would pay a fee of 25% of past-due benefits in the event of
filing in the District Court. (Doc. 77-1). That amount was withheld from plaintiff’s pastdue benefits for potential payment to his counsel for any awarded attorney fees. (See Doc.
77-2 at 3). Counsel now requests a fee be awarded pursuant to § 406(b) in the amount
withheld, $16,095.48.
II.

Discussion
“Congress prescribed specific limitations on the amount of fees which may be

awarded for representation of Social Security claim[ants].” Wrenn ex rel. Wrenn v. Astrue,
525 F.3d 931, 932 (10th Cir. 2008). Section 406(b) controls fees for representation in court,
while § 406(a) deals with fees incurred for representation in the administrative proceedings.
Id. (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)). “Under 42 U.S.C. § 406(b),
whenever a court finds in favor of a claimant who was represented by an attorney, it may
determine a reasonable fee for court representation, not in excess of 25% of the past-due
benefits awarded by reason of the judgment.” Id. (citing § 406(b)(1)(A)).
Upon review of the record of court proceedings and the fee motion and all
attachments, the Court finds the amount sought by plaintiff’s counsel under § 406(b) is
reasonable under all of the circumstances of this case. The award is consistent with the
plaintiff’s contract with counsel, which contemplated fees in the amount of 25% of pastdue benefits, the total award is reasonable in light of the work performed and results

2

obtained, and the amount of total fees to be paid is within the 25% contemplated and does
not constitute a windfall to counsel under the circumstances of this case.
III.

Conclusion
The motion for fees (Doc. 77) is hereby granted, and counsel for the plaintiff, Paul

F. McTighe, is awarded § 406(b) fees in the amount of $16,095.48, to be paid from the
amount withheld from the plaintiff’s past-due benefits in accordance with the defendant
agency’s policy.
IT IS SO ORDERED this 28th day of November, 2023.

Ch
r
i
s
t
i
n
eD.
Li
t
t
l
e
Un
i
t
e
dSt
a
t
e
sMa
g
i
s
t
r
a
t
eJ
u
d
g
e

3