Hanaway v. Commissioner of Social Security Administration

Filing 30

ORDER granting 28 Motion for Attorney Fees and awarding attorney's fees in the amount of $13,851.31. Signed by Honorable Charles Goodwin on 10/30/2019. (jb)

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

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Case No. CIV-17-565-G

ORDER
Now before the Court is Plaintiff Wendy Hanaway’s Motion for Attorney Fees
Under 42 U.S.C. § 406(b) (Doc. No. 28), filed through Plaintiff’s counsel Miles Mitzner.
On September 18, 2018, the Court entered a Judgment reversing the
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. 21) at 1. On August 12, 2019, the Social Security Administration (“SSA”) issued a
favorable decision on Plaintiff’s applications and found Plaintiff disabled as of December
27, 2011. See Pl.’s Mot. Att’y Fees Ex. 2 (Doc. No. 28-2) at 1-2. The Commissioner has
notified Plaintiff that up to $13,851.31 of withheld benefits can be applied toward her
attorney’s fees for work done in this action. See id. at 3; Pl.’s Mot. Att’y Fees at 2; id. Ex.
1 (Doc. No. 28-1) at 1 (contingent-fee contract between Plaintiff and her counsel
prescribing that if Plaintiff is awarded benefits after a remand from federal court, the 25%
of past-due benefits withheld by SSA will be paid to counsel).

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.
The Commissioner has responded that he has no objection to Plaintiff’s counsel’s
current request for $13,851.31 in fees. See Def.’s Resp. (Doc. No. 29) at 1-2.1 The
Commissioner correctly notes, however, that if fees are now awarded pursuant to § 406(b)
Plaintiff’s counsel must refund the lesser EAJA award to Plaintiff. See id. at 2; Order of
Dec. 11, 2018, at 1-2; McGraw v. Barnhart, 450 F.3d 493, 497 & n.2 (10th Cir. 2006).
Having carefully reviewed the parties’ submissions, the Court finds that an award
of $13,851.31, which is 25% 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,

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The Court has considered this Response despite its untimeliness. See LCvR 54.2.
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the applicable attorney-fee agreement, and the results achieved. While before the Court,
Mr. Mitzner filed a detailed opening brief, presenting a well-supported argument that the
administrative law judge erred in denying Plaintiff’s DIB and SSI claims. See Doc. No.
14. The Commissioner filed a brief in opposition, which Mr. Mitzner was required to
review. See Doc. No. 15; Pl.’s Mot. Att’y Fees Ex. 3 (Doc. No. 28-3) at 2. Mr. Mitzner
represents that he spent 32.35 hours litigating Plaintiff’s disability case in federal court,
which would result in an effective hourly rate of $428.17 with respect to the requested §
406(b) fee. See Pl.’s Mot. Att’y Fees at 8; id. Ex. 3, at 2; 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. Mitzner agreed that the latter may collect attorney’s fees for
representation before the Court in the amount of the currently pending request. See Pl.’s
Mot. Att’y Fees Ex. 1, at 1.
Accordingly, Plaintiff’s Motion for Attorney Fees (Doc. No. 28) is GRANTED.
Plaintiff’s attorney Mr. Miles Mitzner is awarded attorney’s fees in the amount of
$13,851.31, 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
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the $6052.05 previously awarded under 28 U.S.C. § 2412. See Order of Dec. 11, 2018, at
1-2; McGraw, 450 F.3d at 497 & n.2.
IT IS SO ORDERED this 30th day of October, 2019.

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