Walker v. Commissioner of Social Security

Filing 37

ORDER granting as modified 35 Motion for Attorney Fees, as more fully set out. Signed by Honorable David L. Russell on 12/7/18. (jw)

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

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ORDER
Before this Court is the Motion for Attorney Fees under 42 U.S.C. § 406(b) filed by
Plaintiff’s attorney, Miles L. Mitzner. Doc. 35. On January 13, 2017, the Court entered
Judgment in favor of the Plaintiff and remanded this matter to the Commissioner for further
proceedings on Plaintiff’s application for disability insurance benefits. See Docs. 24–25.
Upon remand, the Commissioner concluded Plaintiff was disabled and entitled to past-due
benefits. Plaintiff’s counsel now moves for an Order approving an award of $32,826.00—
equaling twenty-five percent of the back benefits awarded to Plaintiff by the Social
Security Administration (“SSA”)—pursuant to 42 U.S.C. § 406(b). Although the
Commissioner does not object to the proposed award, this Court must perform an
independent review to ensure that the award is reasonable. Gisbrecht v. Barnhart, 535 U.S.
789, 807 (2002). Having considered counsel’s request, the Court finds as follows.
When “a court renders a judgment favorable to a claimant . . . 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 pastdue benefits to which the claimant is entitled by reason of such judgment . . . .” 42 U.S.C.
§ 406(b)(1)(A) (emphasis added). Counsel requesting the fee bears the burden of
establishing the reasonableness of the requested fee. Gisbrecht, 535 U.S. at 807. The
attorney fee award is paid by the claimant out of the past-due benefits awarded; the losing
party is not responsible for payment. Id. at 802. “[Section] 406(b) does not displace
contingent-fee agreements as the primary means by which fees are set for successfully
representing Social Security benefits claimants in court. Rather, § 406(b) calls for court
review of such arrangements as an independent check, to assure that they yield reasonable
results in particular cases.” Id. at 807. Factors include: (1) the character of the
representation and results achieved; (2) whether any dilatory conduct might allow attorneys
to “profit from the accumulation of benefits during the pendency of the case in court”; and
(3) whether “the benefits are [so] large in comparison to the amount of time counsel spent
on the case” that a windfall results. Id. at 808.
As prescribed in Gisbrecht, the Court begins its analysis by reviewing the
contingency fee agreement executed by Plaintiff and his counsel. See Doc. 35-1. Plaintiff
agreed to pay attorney’s fees not to exceed twenty-five percent of the back benefits
awarded.1 Here, the requested fee award equals both the contingency fee and the statutory
maximum. The Court next considers the appropriate factors to determine whether a

1
The Attorney Fee Agreement states that the fees “shall be the GREATER of the following: 1) 25 (twentyfive) percent of the past-due benefits resulting from [Plaintiff’s] claim or claims (which [Plaintiff]
understand[s] may exceed $500.00 per hour), OR 2) Such amount as [Plaintiff’s counsel] is able to obtain
pursuant to the Equal Access to Justice Act (EAJA).” Doc. 35-1 (emphasis original).

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downward adjustment is necessary in this case, finding that such an adjustment is
warranted. Plaintiff’s counsel presents records indicating that his firm expended 31.45 total
hours performing legal work before this Court to obtain remand and EAJA fees, broken
into 23.65 hours of attorney work and 7.8 hours of paralegal work. See Doc. 35-3. But
while the legal work performed by Plaintiff’s counsel was of a professional quality and
resulted in a remand to the SSA, without which Plaintiff would not have received past
benefits, the Court finds that the award requested here is not reasonable. An award of
$32,826.00 would equate to an hourly rate of $1,043.75, far exceeding the $190 noncontingent, hourly attorney rates reflected in counsel’s motion.2
Counsel cites an unpublished case from this Court, Gracey v. Astrue, No. CIV-050823-HE, ECF No. 38 (W.D. Okla. Dec. 5, 2008), in support of his fee request. But Gracey,
if anything, reveals how exorbitant counsel’s request is. In Gracey, plaintiff was awarded
past-due disability benefits totaling $75,499.00; Plaintiff’s counsel requested $16,000.00
in attorney’s fees, less than twenty-five percent of the past-due benefits. Gracey, No. CIV05-0823-HE, at 1.3 In order to assess the reasonableness of the requested fee, the court
instructed counsel to submit her non-contingent hourly billing charge. Id. at 2; see also
Gisbrecht, 535 U.S. at 808 (“[T]he court may require the claimant’s attorney to submit, . . .
as an aid to the court’s assessment of the reasonableness of the fee yielded by the fee

2
Even this calculation is somewhat inaccurate, as it reflects the requested fee amount ($32,826.00) divided
by the total hours billed (31.45). However, 7.8 of the billed hours are attributable to paralegal work, which
Plaintiff’s counsel regularly bills at $110/hour. See Doc. 35-3. Thus, counsel’s rate would be even higher,
as he attributes only 23.65 hours to attorney work.
3
Counsel’s records in Gracey indicated 17.5 hours of attorney work and 4.6 hours of paralegal work
(totaling 22.1 hours).

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agreement, a record of the hours spent representing the claimant and a statement of the
lawyer’s normal hourly billing charge for noncontingent-fee cases.”). Counsel was unable
to comply, though, as her practice was primarily conducted on a contingency fee basis. Id.
at 2–3. Accordingly, the court set as a “reasonable baseline” $275 per hour in light of its
“familiarity with hourly rates for comparable appellate work.” Id. at 3. To this baseline the
court applied a multiplier of 2.5, which “t[ook] into account the various contingencies
involved and the somewhat unique factors impacting a reasonableness determination in
[the § 406(b)] context.” Id. (citing Ellick v. Barnhart, 445 F. Supp. 2d 1166, 1173 (C.D.
Cal. 2006)). The resulting reasonable fee amount was $13,008.75 (2.5 times an hourly rate
of $275 for attorney work and $85 for paralegal work)—less than counsel’s requested fee
of $16,000, which was already below the twenty-five percent ceiling.
The Court finds Gracey’s logic persuasive. But applying Gracey’s methodology to
counsel’s records yields a reasonable fee amount far less than the amount he requested.4

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Indeed, counsel’s discussion of Gracey in its motion is perplexing. Counsel first cites to Gracey’s
benchmark rates for attorney and paralegal work, but this ignores the factual circumstances behind those
rates. As plaintiff’s counsel in Gracey did not have a standard hourly billing rate, the court constructed one
using available regional data. See Gracey, No. CIV-05-00823-HE, at 2–3. Here, counsel has provided his
standard, hourly billing rate. See Doc. 35. Next, counsel applies a 2.7 multiplier to Gracey’s benchmark
rates—even though he acknowledges that the Gracey court applied a 2.5 multiplier. Counsel’s calculations
yield hourly rates of $742.50 for attorney work and $229.50 for paralegal work. See id. at 3. But multiplying
these rates by the hours counsel billed his client does not equal counsel’s requested fee of $32,826.00.
Rather, 23.65 hours of attorney work (at $742.50/hour) plus 7.8 hours of paralegal work (at $229.50/hour)
equals approximately $19,350.23, which represents about fifty-nine percent of counsel’s fee request. Of
course, applying a 2.7 multiplier to counsel’s actual hourly rates ($192/hour for attorney work, $110/hour
for paralegal work) yields an even smaller fee of $14,576.76. Finally, counsel concludes—remarkably—
that “the amount requested here is for an hourly rate considerably less than the hourly amount awarded in
[Gracey].” Doc. 35, at 6 (emphasis added). But the Court has already noted that counsel’s fee request distills
down to an hourly rate of $1,043.75—more than one and a half times greater than the multiplied hourly
rate in Gracey (not to mention roughly four times Gracey’s benchmark hourly rate for attorney work). See
Doc. 36, at 3 (“Contrary to counsel’s motion, the hourly rate requested here, $1,043.75, is one and a half
times larger than the rate in Gracey.”).

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To begin, counsel—unlike the attorney in Gracey—has provided hourly, non-contingent
billing rates for his firm’s work: $192/hour for attorney work, $110/hour for paralegal
work. See Doc. 35-3. Consequently, the Court, unlike in Gracey, need not construct a
“reasonable baseline” because it has the data needed. The Court will apply a 2.5 multiplier
to the rates provided by counsel, in recognition of the “various contingencies” and “unique
factors” salient to the § 406(b) context and contingency fee contracts generally. Applying
this multiplier to the rates provided, however, does not yield a fee of $32,826.00. Rather,
the reasonable fee for Plaintiff’s counsel in this case is $13,497.00, which represents 23.65
hours of attorney work billed at $480/hour (or $192/hour times 2.5) plus 7.8 hours of
paralegal work billed at $275/hour (or $110/hour times 2.5).5
Plaintiff’s counsel is not simply entitled to twenty-five percent of the past-due
benefits, either because it is the statutory ceiling or because the underlying contingency
contract included this amount as a potential fee. Under the statute, counsel is entitled to a
reasonable fee, taking into account both the underlying contingency contract and the
factors outlined above designed to ensure that counsel does not enjoy a windfall. Thus,
counsel’s reasonable fee is $13,497.00, which represents an upward departure from the

5
Moreover, in light of the Court’s use of a multiplier, the methodology above is not equivalent to the
lodestar method. See Gordon v. Astrue, 361 F. App’x 933, 936 (10th Cir. 2010) (“[The court] accepted the
firm’s calculation of the hours it worked, as well as the firm’s affidavit . . . that [its] hourly rate was $250.
Further accepting the firm’s argument that it had endured a risk of loss during the pendency of the claim
and operated very efficiently, the court settled on an award of $5,265, equivalent to an hourly rate of $300
and thus higher than a pure lodestar calculation would yield. Simply put, the district court did not violate
Gisbrecht’s prohibition against setting fees using a lodestar approach without first considering the
contingency fee arranged by the claimant and his attorneys. Instead, it appropriately first considered the
reasonableness of the requested fee. Only after finding it wanting did the court then proceed to fashion a
reasonable fee that was based on evidence the firm itself proffered and that was not a pure lodestar award.”).

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lodestar amount, but evades the windfall Plaintiff’s counsel would enjoy from a $32,826.00
fee.
Accordingly, counsel’s motion, as modified above, is GRANTED. The court
approves an award of attorney’s fees under 42 U.S.C. § 406(b) in the amount of $13,497.00.
The Commissioner shall pay the fees directly to Plaintiff’s counsel Miles L. Mitzner of the
Mitzner Law Firm, PLLC. Counsel shall refund to the plaintiff the previously-awarded
EAJA fee of $5,398.90 (Order, Doc. 29). See Gisbrecht, 535 U.S. at 796.
IT IS SO ORDERED this 7th day of December, 2018.

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