Graham v. Commissioner of Social Security

Filing 34

ORDER granting 31 Motion for Attorney Fees and awarding attorney's fees in the amount of $18,000.00 to be paid out of the past-due benefits Plaintiff received by reason of the remand and favorable decision in this case. Signed by Magistrate Judge Charles B Goodwin on 06/08/2018. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOHN B. GRAHAM,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. CIV-15-589-CG

ORDER
Now before the Court is Plaintiff John B. Graham’s Motion for Attorney Fees Under
42 U.S.C. § 406(b) (Doc. No. 31), filed through Plaintiff’s counsel Kyle Saunders.
On September 30, 2016, the Court entered a Judgment reversing the Acting
Commissioner’s decision denying Plaintiff’s applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) and remanding the case for further
administrative proceedings under the fourth sentence of 42 U.S.C. § 405(g). See J. (Doc.
No. 23) at 1. On January 25, 2018, the Social Security Administration issued a “favorable”
decision on Plaintiff’s DIB and SSI applications and found Plaintiff disabled as of April
30, 2009. Pl.’s Mot. Att’y Fees at 2; Pl.’s Mot. Att’y Fees Ex. 1 (Doc. No. 31-1) at 1, 14.
The Acting Commissioner has notified Plaintiff of $96,188.00 in past-due benefits and that,
pursuant to Plaintiff’s fee agreement with counsel, up to $24,047.00 of his withheld
benefits can be applied toward his attorney’s fees. See Pl.’s Mot. Att’y Fees Ex. 2 (Doc.
No. 31-2) at 3, 4; Pl.’s Br. Ex. 1 (Doc. No. 32-1) at 1-2 (contingent-fee contract between
Plaintiff and his counsel prescribing that if Plaintiff is awarded benefits after a remand from

federal court, the attorney’s fee “for representation before the court” shall be the greater of
(i) 25 percent “of the past-due benefits resulting from” Plaintiff’s claim or (ii) any fee
awarded pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412).
Subsection 406(b) provides:
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 . . . .
42 U.S.C. § 406(b)(1)(A). Any such payment must be made “out of, and not in addition
to,” the past-due benefits owed to the claimant. Id. This subsection “does not displace
contingent-fee agreements as the primary means by which fees are set for successfully
representing Social Security benefits claimants in court” so long as the agreed-upon
amount stays within the statute’s “25 percent boundary.” Gisbrecht v. Barnhart, 535 U.S.
789, 807 (2002). For a fee request that lies within this boundary, “the attorney for the
successful claimant” still “must show that the fee sought is reasonable for the services
rendered.” Id.
As for Plaintiff’s counsel’s current request for $18,000.00 in fees, the Acting
Commissioner has responded that she takes no position on this request. See Def.’s Resp.
(Doc. No. 33) at 2. The Acting Commissioner correctly notes, however, that the Court
previously awarded $6026.60 in attorney’s fees pursuant to the Equal Access to Justice
Act, so if fees are now awarded pursuant to § 406(b) Plaintiff’s counsel must refund the
lesser award to Plaintiff. See id.; Am. Order of Mar. 2, 2017 (Doc. No. 2) at 1-2; McGraw
v. Barnhart, 450 F.3d 493, 497 & n.2 (10th Cir. 2006).
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Having carefully reviewed the parties’ submissions, the Court finds that an award
of $18,000.00, which is approximately 18.5% of the past-due benefits awarded, is a
reasonable fee award for the work performed in this case in view of the contingent nature
of the representation, the applicable attorney-fee agreement, and the results achieved.
While before the Court, Mr. Saunders filed a detailed opening brief, presenting several
well-supported arguments that the administrative law judge erred in denying Plaintiff’s
DIB and SSI claims. See Doc. No. 15. The Acting Commissioner filed a brief in
opposition, which Mr. Saunders was required to review. See Doc. No. 21; Pl.’s Mot. Att’y
Fees Ex. 3 (Doc. No. 31-3) at 1. Mr. Saunders represents that he spent 31.70 hours
litigating Plaintiff’s disability case in federal court (not including time spent on attorneyfee issues), which would result in an effective hourly rate of $567.82 with respect to the
requested § 406(b) fee. See Pl.’s Mot. Att’y Fees Ex. 3, at 2; Pl.’s Br. (Doc. No. 32) at 1114; see Gisbrecht, 535 U.S. at 793, 808 (rejecting the “lodestar” method of calculating fee
awards under § 406(b) but noting that the district court may consider the hours spent and
other factors in contingency-fee cases to help assess “the reasonableness of the fee yielded
by the fee agreement”); cf. Harlan v. Colvin, No. CIV-13-477-D, 2015 WL 9295809, at *1
(W.D. Okla. Dec. 18, 2015) (awarding $17,429.22 where the putative rate was between
$517.95 and $632.64 per hour). Plaintiff and Mr. Saunders agreed that the latter may
collect attorney’s fees for representation before the Court for an amount greater than the
currently pending request. See Pl.’s Br. Ex. 1, at 1-2.
Accordingly, the Plaintiff’s Motion for Attorney Fees (Doc. No. 31) is GRANTED
to the following extent. Plaintiff’s attorney Mr. Kyle Saunders is awarded attorney’s fees
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in the amount of $18,000.00, to be paid out of the past-due benefits Plaintiff received by
reason of the remand and favorable decision in this case. See 42 U.S.C. 406(b)(1)(A). The
Social Security Administration shall pay this amount directly to: Kyle Saunders of
Saunders & Saunders, P.O. Box 1605, Ada, Oklahoma, 74820. Mr. Saunders shall
promptly refund to Plaintiff the $6026.60 previously awarded under 28 U.S.C. § 2412. See
Am. Order of Mar. 2, 2017, at 1-2; McGraw, 450 F.3d at 497 & n.2.
IT IS SO ORDERED this 8th day of June, 2018.

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