Cornell v. Commissioner of Social Security
ORDER granting 35 Motion for Attorney Fees. Signed by Honorable Robin J. Cauthron on 3/20/17. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NANCY BERRYHILL*, Acting
Commissioner of the Social Security
Case Number CIV-14-916-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 September 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 her counsel indicated
that if Plaintiff were awarded benefits she 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.
Motion is timely filed.
Pursuant to Fed. R. Civ. P. 25(d) Ms. Berryhill is substituted as the proper Defendant.
In the request for fees, Plaintiff’s counsel seeks a fee of $9,820.50. 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 29.65 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 $5,609.70, that award must be refunded to Plaintiff. Accordingly,
Plaintiff’s counsel shall refund $5,609.70 to Plaintiff.
As set forth more fully herein, Plaintiff’s Motion for Attorney Fees Under 42 U.S.C.
§ 406(b) (Dkt. No. 35) is GRANTED. Plaintiff’s counsel is awarded a fee in the amount
of $9,820.50. Because Plaintiff was previously awarded fees under the EAJA, she is
entitled to a refund of the smaller EAJA award which Plaintiff’s counsel shall forward
immediately upon receipt of the fees awarded herein. The check should be made payable
to Miles L. Mitzner.
IT IS SO ORDERED this 20th day of March, 2017.
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