Scott v. Commissioner of Social Security Administration

Filing 25

ORDER granting in part and denying in part 23 Motion for Attorney Fees and awarding attorney's fees in the amount of $16,213.51. Signed by Judge Charles Goodwin on 12/15/2021. (jb)

Case 5:18-cv-00493-G Document 25 Filed 12/15/21 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHERYL SCOTT,

)
)
Plaintiff,
)
)
v.
)
)
KILOLO KIJAKAZI,
)
Acting Commissioner of Social Security, )
)
Defendant.1
)

Case No. CIV-18-493-G

ORDER
Now before the Court is Plaintiff Cheryl Scott’s Motion for Attorney’s Fees Under
42 U.S.C. § 406(b) (Doc. No. 23), filed through Plaintiff’s counsel Miles Mitzner.
On September 23, 2019, 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. 16) at 1. On remand, the Social Security Administration issued a favorable decision
on Plaintiff’s DIB application and found that Plaintiff was entitled to benefits beginning in
June 2015. See Pl.’s Mot. Att’y Fees at 1-2; id. Ex. 2, Notice of Award (Doc. No. 23-2) at
1. The Notice of Award states that Plaintiff is entitled to past-due benefits and that 25
percent, or $19,485.91, of those past-due benefits has been withheld to be applied toward
her attorney’s fees. See Notice of Award at 3.
1

The Acting Commissioner is hereby substituted as Defendant pursuant to Federal Rule of
Civil Procedure 25(d).

Case 5:18-cv-00493-G Document 25 Filed 12/15/21 Page 2 of 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 contemplated in the fee agreement between
Plaintiff and Plaintiff’s counsel. See Pl.’s Mot. Att’y Fees Ex. 1 (Doc. No. 23-1) at 1. The
Commissioner has responded that he has no objection to Plaintiff’s counsel’s request. See
Def.’s Resp. (Doc. No. 24) at 1-2. The Commissioner correctly notes, however, that the
Court previously awarded $4541.40 in attorney’s fees pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412, and that if fees are now awarded pursuant to §
406(b) Plaintiff’s counsel must refund the lesser EAJA award to Plaintiff. See id. at 3;
Order of Dec. 22, 2020 (Doc. No. 21) at 6; McGraw v. Barnhart, 450 F.3d 493, 497 & n.2
(10th Cir. 2006).

2

Case 5:18-cv-00493-G Document 25 Filed 12/15/21 Page 3 of 5

The Commissioner further notes that—unmentioned in Plaintiff’s Motion—the
Court previously found that the request for compensation for 21.00 hours billed by Mr.
Mitzner for “preparation and drafting of Plaintiff’s opening brief” was unreasonable. See
Order of Dec. 22, 2020, at 5. The Court therefore limited that aspect of Mr. Mitzner’s
request to 15.00 hours and reduced the EAJA fee award accordingly. See id.
The time sheets submitted in support of the instant Motion are identical to those
previously rejected by the Court. See Pl.’s Mot. Ex. 3 (Doc. No. 23-3) (reflecting 21.00
hours of work on the opening brief billed between August 30, 2018, and October 11, 2018).
Plaintiff’s counsel has offered no explanation for renewing his unreasonable request and
has offered no explanation as to why the excess time spent is eligible under the standards
applied to a § 406(b) fee request. Accordingly, the Court will again reduce the hours upon
which it shall consider Mr. Mitzner’s fee award by 6.00 hours. See Order of Dec. 22, 2020,
at 5; Gisbrecht, 535 U.S. at 807.
Having carefully reviewed the parties’ submissions, the Court finds that Mr.
Mitzner’s requested award of $19,485.91 should be correspondingly decreased. Beginning
with a $202.00 hourly rate for the 6.00 unapproved hours, see Order of Dec. 22, 2020, at
3-4, and then applying the 2.7 multiplier referenced by Mr. Mitzner, see Pl.’s Mot. Att’y
Fees at 5, the Court concludes that Mr. Mitzner’s request should be reduced by $3272.40.
The resulting award of $16,213.51, which is approximately 21% 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,
3

Case 5:18-cv-00493-G Document 25 Filed 12/15/21 Page 4 of 5

presenting a well-support argument as to why the administrative law judge erred in denying
Plaintiff’s DIB claim. See Doc. No. 13. The Commissioner filed a brief in opposition,
which Mr. Mitzner was required to review. See Doc. No. 14; Pl.’s Mot. Att’y Fees Ex. 3,
at 2.
Calculated as per the above, the 20.35 attorney hours spent litigating Plaintiff’s
disability case in federal court would result in an effective hourly rate of $739.81 with
respect to the relevant portion of the requested § 406(b) fee. See Pl.’s Mot. Att’y Fees at
3-7; id. Ex. 3, at 2; Def.’s Resp. at 2; see also 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). 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 1; 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).
Accordingly, Plaintiff’s Motion for Attorney Fees Under 42 U.S.C. § 406(b) (Doc.
No. 23) is GRANTED IN PART AND DENIED IN PART. Plaintiff’s attorney Miles
Mitzner is awarded attorney’s fees in the amount of $16,213.51, to be paid out of the past4

Case 5:18-cv-00493-G Document 25 Filed 12/15/21 Page 5 of 5

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, Mitzner Law Firm, 809 E. 33rd Street, Edmond, Oklahoma,
73013. Upon payment, Mr. Mitzner shall promptly refund to Plaintiff the $4541.40
previously awarded under 28 U.S.C. § 2412. See Order of Dec. 22, 2020, at 6; McGraw,
450 F.3d at 497 & n.2.
IT IS SO ORDERED this 15th day of December, 2021.

5