Cooper v. Commissioner of Social Security Administration

Filing 32

ORDER granting 31 Motion for Attorney Fees and awarding attorney's fees in the amount of $27,761.25. Signed by Honorable Charles Goodwin on 07/06/2020. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MICHAEL COOPER,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

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Case No. CIV-17-69-G

ORDER
Now before the Court is Plaintiff Michael Cooper’s Motion for Attorney’s Fees
Under 42 U.S.C. § 406(b) (Doc. No. 31), filed through Plaintiff’s counsel Miles Mitzner.
On March 14, 2018, the Court entered a Judgment reversing the decision of the
Commissioner of the Social Security Administration (“SSA”), which had denied Plaintiff’s
application for disability insurance benefits (“DIB”), and remanding the case for further
administrative proceedings under the fourth sentence of 42 U.S.C. § 405(g). See J. (Doc.
No. 24) at 1. On April 26, 2020, the Social Security Administration issued a favorable
decision on Plaintiff’s DIB application and found that Plaintiff was entitled to benefits
beginning in August 2012. See Pl.’s Mot. Att’y Fees at 2; id. Ex. 2 (Doc. No. 31-2) at 1.
The Commissioner’s notice states that Plaintiff is entitled to past-due benefits of
$111,045.00 and that 25 percent, or $27,761.25, of those past-due benefits is being
withheld to be applied toward attorney’s fees for work done in this action. See Pl.’s Mot.
Att’y Fees Ex. 2, at 5.
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.
In his Motion, Plaintiff’s counsel requests a fee award of 25 percent of Plaintiff’s
total past-due benefits, which is the percentage stipulated in the fee agreement between
Plaintiff and Plaintiff’s counsel. See Pl.’s Mot. Att’y Fees Ex. 1 (Doc. No. 31-1) at 1. No
response has been filed to the Motion within the time allowed.
Having carefully reviewed the parties’ submissions, the Court finds that an award
of $27,761.25, which the Notice of Award shows is 25% of the past-due benefit award, 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. Mitzner filed a detailed opening brief, presenting several
detailed arguments that the administrative law judge erred in denying Plaintiff’s DIB claim.

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See Doc. No. 18. The Commissioner filed a brief in opposition, which Mr. Mitzner was
required to review. See Doc. No. 19; Pl.’s Mot. Att’y Fees Ex. 3 (Doc. No. 31-3) at 4.
Mr. Mitzner represents that he and his staff spent 37.85 hours litigating Plaintiff’s
disability case in federal court, which would result in an effective hourly rate of $742.50
with respect to attorney-work portion of the requested § 406(b) fee. See Pl.’s Mot. Att’y
Fees at 5-6; id. Ex. 3, at 4-5; 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. CIV13-477-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). While a large sum,
Plaintiff’s past-due benefit award was likewise significant. Plaintiff and Mr. Mitzner
agreed that the latter may collect attorney’s fees for representation before the Court in the
amount of the currently pending request, and the Court finds the unopposed request
reasonable under the circumstances of this case. See Pl.’s Mot. Att’y Fees Ex. 1, at 4-7; cf.
Boatman v. Astrue, No. CIV-12-184-M (W.D. Okla. Sept. 3, 2015) (order approving §
406(b) award where putative rate was approximately $788.64 per hour). The Court
additionally notes that Plaintiff was previously awarded $6000.00 in attorney’s fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, and that upon the
award of these § 406(b) fees Mr. Mitzner must refund the lesser EAJA award to Plaintiff.
See Order of May 7, 2018 (Doc. No. 27) at 1-2; McGraw v. Barnhart, 450 F.3d 493, 497
& n.2 (10th Cir. 2006).
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CONCLUSION
Accordingly, Plaintiff’s Motion for Attorney Fees Under 42 U.S.C. § 406(b) (Doc.
No. 31) is GRANTED. Plaintiff’s attorney Miles Mitzner is awarded attorney’s fees in the
amount of $27,761.25, 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: Miles Mitzner, P.O. Box
5700, Edmond, Oklahoma, 73083. Upon payment, Mr. Mitzner shall promptly refund to
Plaintiff the $6000.00 previously awarded under 28 U.S.C. § 2412. See Order of May 7,
2018, at 1-2; McGraw, 450 F.3d at 497 & n.2.
IT IS SO ORDERED this 6th day of July, 2020.

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