McAdams v. Commissioner of Social Security

Filing 22

ORDER granting in part and denying in part 20 Motion for Attorney Fees and awarding Plaintiff's counsel legal fees in the amount of $17,400.00. Signed by Honorable Charles Goodwin on 12/18/2018. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
PATRICIA A. MCADAMS,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. CIV-16-1094-G

ORDER
Now before the Court is Plaintiff Patricia A. McAdams’ Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (Doc. No. 20) filed through Plaintiff’s counsel Timothy M.
White. Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“Acting
Commissioner”) has not responded within the allotted time to Plaintiff’s counsel’s request
for fees in the amount of $19,744.25.
On April 24, 2017, the Court entered a Judgment reversing the Acting
Commissioner’s decision to deny Plaintiff’s application for disability insurance benefits
(“DIB”) and remanding the case for further administrative proceedings under sentence four
of 42 U.S.C. § 405(g). See J. (Doc. No. 16). On May 23, 2018, the Social Security
Administration (“SSA”) issued a fully favorable decision on Plaintiff’s DIB application
and found Plaintiff disabled as of January 2, 2012. See Pl.’s Mot. Att’y Fees Ex. 2 (Doc.
No. 20-2) at 12. The Acting Commissioner has now notified Plaintiff that she is entitled
to $102,977.00 in past-due benefits beginning July 2012, see id. Ex. 1 (Doc. No. 20-1) at

4,1 and that pursuant to Plaintiff’s fee agreement with counsel2 up to $19,744.25 of
withheld benefits can be applied toward counsel’s legal fees. See id. at 3. See also id. Ex.
3 (Doc. No. 20-3) (attorney fee agreement between Plaintiff and counsel prescribing that
fee will be 25% percent of past-due benefits).
Plaintiff did not, prior to filing the current Motion, file a motion pursuant to Federal
Rule of Civil Procedure 60(b) requesting relief from the April 24, 2017 Judgment and leave
to seek attorney fees under 42 U.S.C. § 406(b). See McGraw v. Barnhart, 450 F.3d 493
(10th Cir. 2006) (“We believe that the best option in these circumstances is for counsel to
employ Federal Rule of Civil Procedure 60(b)(6) in seeking a § 406(b)(1) fee award.”).
Because the Commissioner did not object to the current Motion on that (or any) ground,
the Court treats the current Motion as implicitly seeking Rule 60(b) relief and proceeds on
that basis. Cf. Davis v. Astrue, No. CIV–07–231–SPS, 2010 WL 3860511, at *1 (E.D.
Okla. Sep. 30, 2010) (considering § 406(b) motion, despite it not being preceded by Rule
60(b) motion, where Commissioner did not object on that basis). The Court notes,
however, that Plaintiff’s counsel will be expected to separately seek such relief in
appropriate circumstances in the future.
Turning then to the substance of Plaintiff’s request, § 406(b)—on which Plaintiff

In the Notice of Award issued on June 20, 2018, the SSA advised Plaintiff that “past due
benefits are those payable through May 2018,” and that such amount is $77,232.75. See
Pl.’s Mot. Atty’s Fees Ex. 1 (Doc. No. 20-1) at 2, 3.
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McAdams and AAA Disability Advocates, P.C. (through its representative, attorney
White) entered into an attorney fee agreement in August 2016. See Pl.’s Mot. Att’y Fees
Ex. 3 (Doc. No. 20-3).
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has relied—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 amount of such 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 agreedupon 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. (citation and footnote omitted).
After engaging in the “independent check” that Gisbrecht requires, the Court finds
that the requested amount would not be a “reasonable result[ ]” in this “particular case[ ].”
Id. The request does not exceed the amount contemplated by the relevant fee agreement,
and the Court sees no reason for reduction based on counsel’s representation or the results
achieved. Nevertheless, the Court finds “‘downward adjustment is . . . in order,’” Russell
v. Astrue, 509 F. App’x 695, 696 (10th Cir. 2013) (quoting Gisbrecht, 535 U.S. at 808),
because “the recovery of past-due benefits for the claimant is ‘large in comparison to the
amount of time counsel spent on the case.’” Id. (emphasis omitted) (quoting Gisbrecht,
535 U.S. at 808).
Plaintiff’s counsel expended 23.1 hours working on this case. See Pl.’s Mot. Atty’s
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Fees Ex. 5 (Doc. No. 20-5) at 3. Plaintiff’s counsel acknowledges that his request would
yield “a rate of approximately $854.73 per hour,” see Pl. Mot. Atty’s Fees at 6, but argues
that if that amount “is factored by 2.78,” id. at 6, “to make up for the risk of non-payment,”
id. at 5, and “to reduce it to an equivalent hourly rate of non-contingent work,” id. at 6,
“then an equivalent hourly rate of $307.46 . . . is being charged.” Id.
While fully recognizing and adhering to Gisbrecht’s rejection of sole reliance on
lodestar calculations, the Court finds that an award of $19,744.25 is excessive and
unreasonable in this case in light of the “services rendered.” Gisbrecht, 535 U.S. at 807.
See Russell, 509 F. App’x at 696-98 (affirming district court’s reduction of counsel’s
request of $17,184.10 to $11,884.10 for 28.1 hours of work); Burton v. Berryhill, No. CIV15-1039-CG, 2018 WL 4550398, at *1-2 (W.D. Okla. Sept. 21, 2018) (awarding counsel
$12,270.80 for spending 22.1 hours litigating claimant’s disability case in federal court,
which amount was approximately 22.5% of past-due benefits awarded); Vincent v.
Berryhill, No. CIV-15-610-CG, 2018 WL 1582473, at *1-2 (W.D. Okla. March 30, 2018)
(awarding $14,000.00 in fees for 24.6 hours of legal work). See also Johnson v. Berryhill,
No. CIV-15-1009-HE (W.D. Okla. Oct. 10, 2018) (awarding $15,086.00 in fees for 38.9
hours spent on case).
Accordingly, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s
Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Doc. No. 20) and awards
Plaintiff’s counsel legal fees in the amount of $17,400.00, which is approximately 22.5%
of the past-due benefits. The Court ORDERS the SSA to pay such fees out of the past-due
benefits that Plaintiff received by reason of this Court’s remand and the SSA’s favorable
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decision in this case, see 42 U.S.C. 406(b)(1)(A), and further ORDERS the SSA to pay this
amount directly to Plaintiff’s attorney, Timothy M. White, 7906 East 55th Street, Tulsa,
Oklahoma 74145. Attorney White shall promptly refund to Plaintiff the sum of $5,086.10
previously awarded under 28 U.S.C. § 2412. See Order of May 23, 2018 (West, J.). See
also Weakley v. Bowen, 803 F.2d 575 (10th Cir. 1986).
IT IS SO ORDERED this 18th day of December, 2018.

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