Sumner v. Commissioner of Social Security Administration

Filing 35

ORDER granting 33 Motion for Attorney Fees and awarding fees in the amount of $15,637.27 to be paid out of the past-due benefits Plaintiff received by reason of the remand and favorable decision in this case. Upon payment, Ms. Troutman shall promptly refund to Plaintiff the $4874.40 previously awarded under 28 U.S.C. § 2412. Signed by Honorable Charles Goodwin on 09/19/2019. (jb)

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

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Case No. CIV-17-725-G

ORDER
Now before the Court is Plaintiff Barbara Jean Sumner’s Motion for Attorney Fees
Under 42 U.S.C. § 406(b) (Doc. No. 33), filed through Plaintiff’s counsel Gayle L.
Troutman.
On September 28, 2018, the Court entered a Judgment reversing the
Commissioner’s decision denying Plaintiff’s applications 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. 26) at 1. On June 12, 2019, the Social
Security Administration issued a favorable decision on Plaintiff’s DIB application and
found Plaintiff disabled as of June 9, 2012. See Pl.’s Mot. Att’y Fees Ex. 2 (Doc. No. 332) at 1-2. The Commissioner has notified Plaintiff of $67,051.50 in past-due benefits and
that up to $10,762.87 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 1-2; id. Ex. 1 (Doc. No. 331) at 1 (contingent-fee contract between Plaintiff and her counsel prescribing that if
Plaintiff is awarded benefits after a remand from federal court, counsel will request the

court to approve a fee of “not to exceed 25 percent of the past-due benefits”). In addition,
the Court has previously awarded $4874.40 in attorney’s fees pursuant to the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. §§ 2412 et seq. See Order of Feb. 7, 2019 (Doc. No.
30). The funds being withheld plus the previous EAJA award amount to $15,637.27, which
is the sum requested in the present Motion.
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 $15,637.27 in fees. See Def.’s Resp. (Doc. No. 34) at 1-2. The
Commissioner correctly notes, however, that if fees are now awarded pursuant to § 406(b)

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Plaintiff’s counsel must refund the lesser EAJA award to Plaintiff. See id. at 2; Order of
Feb. 7, 2019, at 1-2; McGraw v. Barnhart, 450 F.3d 493, 497 & n.2 (10th Cir. 2006).1
Having carefully reviewed the parties’ submissions, the Court finds that an award
of $15,637.27, which is approximately 23.5% 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, the applicable attorney-fee agreement, and the results achieved.
While before the Court, Ms. Troutman filed a detailed opening brief, presenting a wellsupported argument that the administrative law judge erred in denying Plaintiff’s DIB
claim. See Doc. No. 19. The Commissioner filed a brief in opposition, which Ms.
Troutman was required to review. See Doc. No. 23; Pl.’s Mot. Att’y Fees Ex. 4 (Doc. No.
33-4) at 5. Ms. Troutman represents that she spent 21.2 hours litigating Plaintiff’s
disability case in federal court, which would result in an effective hourly rate of $658.13
with respect to the relevant portion of the requested § 406(b) fee. See Pl.’s Mot. Att’y Fees
at 10; id. Ex. 4, at 6; 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

Plaintiff’s contract with her counsel expressly authorizes application of “the EAJA
payment . . . toward any unpaid balance of the fee awarded by the Court.” Pl.’s Mot. Att’y
Fees Ex. 1, at 1. The Commissioner has no objection to Plaintiff’s and her counsel’s
agreement that her previous fee award may be used to offset the present award. See Def.’s
Resp. at 2 n.2; Pl.’s Mot. Att’y Fees Ex. 1, at 1.
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rate was between $517.95 and $632.64 per hour). Plaintiff and Ms. Troutman agreed that
the latter may collect attorney’s fees for representation before the Court for an amount
greater than the currently pending request. See Pl.’s Mot. Att’y Fees Ex. 1, at 1.
Accordingly, Plaintiff’s Motion for Attorney Fees (Doc. No. 33) is GRANTED.
Plaintiff’s attorney Ms. Gayle Troutman is awarded attorney’s fees in the amount of
$15,637.27, 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: Gayle L. Troutman of Troutman
& Troutman, P.C., 1350 South Boulder Avenue, Suite 410, Tulsa, Oklahoma, 74119. Upon
payment, Ms. Troutman shall promptly refund to Plaintiff the $4874.40 previously
awarded under 28 U.S.C. § 2412. See Order of Feb. 7, 2019, at 1-2; McGraw, 450 F.3d at
497 & n.2.
IT IS SO ORDERED this 19th day of September, 2019.

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