Belcher v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER -- The Court GRANTS Plaintiff's Motion for Attorney Fees Under 42 U.S.C. § 406(b), ECF No. 23 . See Order as more fully set out. Signed by Magistrate Judge Shon T. Erwin on 11/15/19. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HERBERT A. BELCHER,
Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Case No. CIV-17-1381-STE
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorney Fees Under 42
U.S.C. § 406(b), seeking an award in the amount of $12,734.001 which is less than the
amount counsel could request. (ECF No. 23). The Commissioner has not responded.
I.
PROCEDURAL BACKGROUND
Plaintiff Herbert Allen Belcher retained Darcie Laue to appeal the SSA denial of his
application for disability insurance benefits. (ECF No. 23-2). The contract between Mr.
Belcher and Darcie Laue provided for payment of an attorney fee contingent upon Mr.
Belcher prevailing before the federal court and ultimately being awarded benefits by the
SSA. Under the contract, Mr. Belcher agreed to an attorney fee in the amount of twentyfive percent (25%) of any past-due benefits awarded. See id.
According to the terms of the fee contract, counsel is legally entitled to request a fee for
$18,734.25 which is 25% of $74,937.00 in back disability benefits.
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Plaintiff prevailed in federal court. In an Order and Judgment dated July 31, 2018,
the Court reversed the decision of the SSA and remanded the case for further
administrative findings. (ECF Nos. 15 & 16). On remand, Plaintiff was awarded past-due
benefits from which the SSA withheld $18,734.25, representing twenty-five percent
(25%) of the total past due benefit. (ECF No. 23-1:4). Pursuant to 42 U.S.C. §406(b),and
citing the contractual agreement between the parties and Gisbrecht v. Barnhart, Plaintiff
requests a fee award in the amount of $12,734.00. (ECF No. 23).
II.
FEES FOR REPRESENTATION
Congress has prescribed specific limitations on the amount of fees which may be
awarded for representation of Social Security claims. See 42 U.S.C. § 406. Section 406
“deals with the administrative and judicial review stages discretely: § 406(a) governs fees
for representation in administrative proceedings; § 406(b) controls fees for representation
in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). 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.
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at 789. 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. If attorney fees are also awarded under EAJA, Plaintiff’s counsel is to refund the
smaller amount to Plaintiff. Weakley v. Bowen, 803 F.2d 575 (10th Cir. 1986).
III.
AWARD OF § 406(b) FEES
Darcie Laue has requested § 406(b) fees in the amount of $12,734.00, and has
attached a detailed billing summary reflecting a total of 27.10 hours. However, the
amount requested does not exceed twenty-five percent (25%) of the total awarded pastdue benefits, which would equal $18,734.25 and is, therefore, in line with both the
contractual agreement and § 406(b). The Court has reviewed the file and finds this
amount to be reasonable.
IV.
PLAINTIFF’S AWARD OF ATTORNEY FEES UNDER THE EQUAL ACCESS TO
JUSTICE ACT (EAJA)
On December 27, 2018 Plaintiff was awarded EAJA attorney fees in the amount of
$5,669.85 as the prevailing party. See ECF No. 20. Plaintiff’s attorney therefore must
refund the lesser of the two fees to Plaintiff. See Weakley v. Bowen, 803 F.3d 575, 580
(10th Cir. 1986).
ORDER
The Court GRANTS Plaintiff’s Motion for Attorney Fees Under 42 U.S.C. § 406(b),
(ECF No. 23). Plaintiff’s attorney, Darcie Laue, is awarded attorney’s fees in the amount
of $12,734.00, 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). Plaintiff’s
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attorney shall refund the attorney fees awarded under the EAJA (ECF No. 20). See
Weakley v. Bowen, 803 F.3d 575, 580 (10th Cir. 1986).
The SSA shall pay this amount directly to Darcie K Laue, Social Security Law
Center-OKC, 104 S. May Ave., Oklahoma City, OK 73107.
ENTERED on November 15, 2019.
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