Davis v. Commissioner of Social Security
ORDER granting 22 Motion for Attorney Fees Under 42 U.S.C.§ 406(b). Signed by Honorable Robin J. Cauthron on 1/10/17. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CAROLYN COLVIN, Acting
Commissioner of the Social Security
Case Number CIV-13-1046-C
MEMORANDUM OPINION AND ORDER
Plaintiff’s application for disability insurance benefits was denied by the Social
Security Administration. Plaintiff then filed the present action seeking review of the
In February of 2015, the Court remanded the matter to the
Commissioner. On remand, the Commissioner issued a Notice of Award, awarding Plaintiff
back benefits. Plaintiff’s counsel now seeks an award of attorney’s fees pursuant to 42
U.S.C. § 406(b).
The contingent fee agreement executed between Plaintiff and his counsel indicated
that if Plaintiff were awarded benefits he would pay counsel a fee not exceeding 25% of the
past-due award. Now that the Notice of Benefit has been issued, counsel seeks an award of
attorney’s fees in accord with that agreement. The Court previously granted Plaintiff’s
motion pursuant to Fed. R. Civ. P. 60(b) to reopen the case. The present Motion is timely
In the request for fees, Plaintiff’s counsel seeks a fee of $8,283.92. Governing this
request is 42 U.S.C. § 406(b)(1)(A), which states:
Whenever a court renders a judgment favorable to a claimant under this
subchapter who was represented before the court by an attorney, the court may
determine and allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the total of the past-due benefits
to which the claimant is entitled by reason of such judgment . . . .
Where a contingent fee agreement is in place, the Court must examine the reasonableness of
its terms and reduce an award as appropriate “based on the character of the representation
and the results the representative achieved.” Gisbrecht v. Barnhart, 535 U.S. 789, 808
(2002). In support of the motion, counsel has attached a time report demonstrating that
counsel expended approximately 33.8 hours of attorney time in performing the work before
the Court. After considering the extent of work performed, the result obtained, and the fee
award sought, the Court finds the amount to be a reasonable fee for the work performed.
Indeed, the benefits awarded to Plaintiff certainly justify the amount of time spent by the firm
handling the case and the evidence before the Court offers nothing to suggest that the
character of the representation or the results achieved were in any way deficient. Because
Plaintiff’s counsel previously sought and received a fee award pursuant to EAJA, in the
amount of $5,881.20, that award must be refunded to Plaintiff. Accordingly, Plaintiff’s
counsel shall refund $5,881.20 to Plaintiff.
As set forth more fully herein, Plaintiff’s Motion for Attorney Fees Under 42 U.S.C.
§ 406(b) (Dkt. No. 22) is GRANTED. Plaintiff’s counsel is awarded a fee in the amount of
$8,283.92. The check should be made payable to Miles L. Mitzner. Because Plaintiff was
previously awarded fees under the EAJA, he is entitled to a refund of the smaller EAJA
award, which Plaintiff’s counsel shall forward immediately upon receipt of the fees awarded
IT IS SO ORDERED this 10th day of January, 2017.
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