Doom v. Colvin

Filing 32

ORDER granting 31 Motion for Attorney Fees, as more fully set out. Signed by Honorable David L. Russell on 1/30/18. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JAMES DOOM,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration,
Defendant.

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No. CIV-15-409-R

ORDER
Pending before the Court is Plaintiff’s Motion for Attorney’s Fees Under 42 U.S.C.
§ 406(b), Doc. 31. On June 13, 2016, the Court reversed the Commissioner’s decision
denying Plaintiff disability benefits and remanded the matter to the administrative law
judge (“ALJ”) for further proceedings. See Doc. 23. Upon remand on January 21, 2018,
the ALJ awarded Plaintiff $80,069 in past-due benefits, $20,017.25 withheld for attorney’s
fees. See Doc. 31-2, at 4. On January 25, Plaintiff filed this timely Rule 60(b) motion to
amend the Court’s earlier judgment and grant him $20,017.25 in attorney’s fees. See Fed.
R. Civ. Pro. 60(c)(1) (“A motion under Rule 60(b) must be made within a reasonable
time.”); McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006) (“A motion for an award
of fees under § 406(b)(1) should be filed within a reasonable time of the Commissioner's
decision awarding benefits.”). The Court now reviews whether the requested fee amount is
“reasonable” and not in excess of 25% of past-due benefits under 42 U.S.C. § 406(b)(1)(A).
The Court hereby grants the Motion for the following reasons.
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The Supreme Court instructed courts to look first to the “contingent-fee agreement”
and “then test[] it for reasonableness.” Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002).
To determine reasonableness, the Court considers attorney delay, the quality of
representation, and whether an award constitutes a “windfall” for the lawyer relative to
their time spent on the case. See id. Looking first to the contingent-fee agreement, Counsel
requests the twenty-five percent statutory maximum fee award, or $20,017.25, governed
by Plaintiff’s “Attorney Fee Agreement.” Doc. 31-1; see 42 U.S.C. § 406(b)(1)(A). The
agreement sets counsel’s fee at the greater of (1) 25% of past-due benefits resulting from
Plaintiff’s claims, “which [Plaintiff] understand[s] may exceed $500.00 per hour,” or (2)
the EAJA award. Id. at 1.
Counsel’s 25% contingency fee is reasonable. It accounts for the inherent risk of
litigating social security cases, in which there is no guarantee counsel will be completely
compensated for their services.1 See Royzer v. Sec’y of Health & Human Servs., 900 F.2d
981, 982 (6th Cir. 1990) (“[W]e cannot ignore the fact that the attorney will not prevail
every time. The hourly rate in the next contingent fee case will be zero, unless benefits are
awarded. Contingent fees generally overcompensate in some cases and undercompensate

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Counsel cites federal court statistics that are over 13 years old and uses the wrong numbers. See Doc. 31,
at 4. However, his argument about litigation risk remains true. In 2004, about 37% of federal social security
cases (not 35.5%) ultimately produced attorney’s fees under 42 U.S.C. § 406(b). SOCIAL SECURITY
ADVISORY BOARD, DISABILITY DECISION MAKING: DATA AND MATERIALS 89 (May 2006). Federal Courts
reversed 6% of cases for payment of benefits and remanded 46% of cases for further administrative
proceedings. Id. The Court multiplied 46% by 67%, the percentage of remand cases that were ultimately
found entitled to benefits, and added this 31% product to the 6% of reversal cases. The most recent data in
2010 suggests that this 37% number has remained stagnant, if not slightly lower as the reversal rate has
creeped downward. See SOCIAL SECURITY ADVISORY BOARD, ASPECTS OF DISABILITY DECISION
MAKING: DATA AND MATERIALS 70 (Feb. 2012).

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in others. It is the nature of the beast.”). Counsel performed 30.55 hours filing a complaint
(Doc. 1), amended complaint (Doc. 7), and opening social security brief (Doc. 14) at a
$190 hourly rate; a paralegal billed 14.8 hours at a $110 rate. Subtracting the $1,628 in
paralegal fees, awarding counsel’s preferred fee would constitute a $602 hourly rate. At
first glance, the amount is high, and presumably much of Plaintiff’s $80,069 past-due
benefits can be attributed to the year-and-a-half-long delay on remand from the Court, not
to counsel’s work. However, Plaintiff still received a substantial award in large part due to
counsel’s efforts. Counsel’s representation was professional and there was no significant
delay attributable to him. Further, Plaintiff had notice of the potential consequences of his
contingent-fee agreement; the agreement makes clear that a 25% contingency may entitle
counsel to an hourly rate above $500, which makes a $602 hourly rate more reasonable.
See Doc. 31-1, at 1. In light of these facts, the nature of contingency work, and the fee
awards in other cases, the requested § 406(b) attorney’s fee is reasonable for work
performed in this case before this Court. See generally McGraw v. Barnhart, 450 F.3d 493
(10th Cir. 2006); Gordon v. Astrue, 361 F. App’x 933 (10th Cir. 2010).
The Court hereby GRANTS the Motion for Attorney’s Fees, Doc. 31, under 42
U.S.C. § 406(b) and awards Plaintiff’s counsel $20,017.25 in fees. The Commissioner shall
pay the fees directly to Plaintiff’s counsel Miles L. Mitzner. In light of the previous EAJA
fee award, counsel shall reimburse Plaintiff the amount of $5,500. See Order and Judgment
Granting EAJA Award, Docs. 27 and 28; Attorney Fee Agreement, Doc. 31-1; 42 U.S.C.
§ 406(b)(1)(A) (“In case of any such [judgment of past-due benefits under this chapter], no
other fee may be payable or certified for payment for such representation except as
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provided in this paragraph.”); Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986)
(“[T]he attorney will receive both the award under EAJA and the award under the Social
Security Act, but will be required to pay the smaller amount to his client.”).
IT IS SO ORDERED this 30th day of January, 2018.

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