Walker v. Commissioner of Social Security

Filing 24

ORDER granting in part and denying in part 22 Motion for Attorney Fees Under 42:406(b). Signed by Honorable Timothy D. DeGiusti on 7/24/19. (kmt)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AMY WALKER,
Plaintiff,
vs.
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ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

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Case No. CIV-16-703-D

ORDER
Before the Court is the Motion for Attorney Fees Under 42 U.S.C. § 406(b) [Doc.
Nos. 22], filed by Plaintiff’s attorney. Miles L. Mitzner seeks approval of a fee award in
the amount of $34,007.38, to be paid out of Plaintiff’s award of past-due benefits in
accordance with a 25-percent contingency fee agreement between Plaintiff and his law
firm. Defendant has made a timely response to the Motion, arguing that the amount of
Mr. Mitzner’s fee request is unreasonable and represents a windfall. Defendant reminds
the Court of its obligation to determine a reasonable attorney fee, and urges the Court to
make an unspecified reduction of the contingency fee amount.
Upon consideration of the Motion in light of Gisbrecht v. Barnhart, 535 U.S. 789
(2002), and Wrenn v. Astrue, 525 F.3d 931 (10th Cir. 2008), the Court finds that Plaintiff’s
attorney may recover a reasonable fee for the representation of Plaintiff in this case up to
the statutory limit of 25% of past-due benefits, provided the attorney refunds the amount

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The newly appointed Commissioner is automatically substituted as the proper defendant
pursuant to Fed. R. Civ. P. 25(d).

of fees previously awarded under the Equal Access to Justice Act (EAJA). See Weakley v.
Bowen, 803 F.2d 575, 580 (10th Cir. 1986); see also Order Granting Stip. Mot. for Award
Att’y Fees [Doc. No. 19]. The supporting documents with the Motion, as well as the case
record, show a total of 35.05 hours of legal services performed for Plaintiff’s representation
in this case (26.5 attorney hours and 8.55 paralegal hours), which resulted in a favorable
judicial decision. See J. & Order of Remand [Doc. No. 17]. After remand, Plaintiff was
determined to be entitled to benefits and was awarded a past-due amount of $136,029.50.
The Motion has been timely filed within the deadline previously set by the Court. See
Order of June 4, 2019 [Doc. No. 21].
Under the circumstances presented, the Court finds that the requested amount of
$34,007.38 represents an unreasonable fee award for the work done by Plaintiff’s attorney
in this case, taking into account the contingent-fee agreement and other pertinent factors.
See Gisbrecht, 535 U.S. at 808. The amount does not exceed 25% of Plaintiff’s award of
benefits obtained by reason of the judgment entered May 19, 2017, but it represents a
windfall for Plaintiff’s attorney and far exceeds the amount needed to account for the
contingency nature of the representation and the delay in receiving payment. The Court
finds that $15,601.25 represents a reasonable fee award under § 406(b), provided
Mr. Mitzner refunds to Plaintiff the amount previously awarded as an EAJA fee award.2

2 This amount represents a reasonable hourly rate for the attorney ($200) multiplied by
the number of attorney hours (26.5) and a multiplier of 2.5 for an attorney total of $13,250, and a
reasonable hourly rate for the paralegal ($110) multiplied by the number of paralegal hours (8.55)
and a multiplier of 2.5 for a paralegal total of $2,351.25.
2

IT IS THEREFORE ORDERED that the Motion for Attorney Fees Under 42 U.S.C.
§ 406(b) [Doc. No. 22] is GRANTED in part and DENIED in part, as set forth herein. The
Court approves an award of attorney fees under 42 U.S.C. § 406(b) to be paid by Defendant
to attorney Miles L. Mitzner in the amount of $15,601.25. Upon payment of this amount,
Plaintiff’s attorney shall promptly refund to Plaintiff Amy Walker the amount of EAJA
fees previously awarded of $5,000.00.
IT IS SO ORDERED this 24th day of July, 2019.

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