Desai v. Commissioner of Social Security Administration

Filing 28

ORDER granting 25 Plaintiff's Motion for Attorney Fees Under 42 U.S.C. § 406(b) (as fully set out in this order). Signed by Honorable Stephen P. Friot on 7/14/2021. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PRAVINA DESAI,
Plaintiff,
-vsANDREW SAUL, Commissioner of
Social Security,
Defendant.

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Case No. CIV-19-154-F

ORDER
Before the court is the Motion for Attorney Fees Under 42 U.S.C. § 406(b),
filed by plaintiff, Pravina Desai, and plaintiff’s counsel, Miles L. Mitzner, on
June 21, 2021. Doc. no. 25. Defendant has responded to the motion. No reply has
been filed by plaintiff and plaintiff’s counsel within the time specified by LCvR
7.1(i). Upon review of the parties’ submissions and relevant law, the court makes
its determination.
The court concludes the requested fee of $14,458.50 is reasonable in amount
in this contingency matter, in relation to the benefits and services received for the
fees. Plaintiff was awarded past-due benefits in the amount of $57,834.00. The
amount of attorney’s fees requested is not more than 25% of the past-due benefits
awarded. It is also consistent with the contingency fee agreement between plaintiff
and plaintiff’s counsel which is to be given primacy under Gisbrecht v. Barnhart,
535 U.S. 789 (2002), and it is not subject to reduction under the Gisbrecht factors.
The legal work performed by counsel was of professional quality. Without the legal
work performed by counsel, there presumably would not have been a court order

reversing defendant’s denial of plaintiff’s application for disability insurance
benefits and no subsequent award of $57,834.00 in past-due benefits. In the court’s
view, counsel is not the cause of the delay in reaching a favorable decision in this
case. Further, the court concludes that the requested attorney’s fees do not result in
a windfall for counsel considering the contingent nature of the claim.
The court concludes that the request for attorney’s fees is timely. The
attorney’s fees motion was filed within the time specified by the court in its June 16,
2021 order (doc. no. 24).
The court concludes that defendant shall pay directly to plaintiff’s counsel,
Miles L. Mitzner, the $6000.00 withheld from plaintiff’s past-due benefits for
attorney’s fees. As the amount withheld by the defendant is insufficient to cover the
total amount of attorney fees awarded by the court, plaintiff’s counsel may proceed
by following the procedures outlined in Social Security Administration Program
Operations Manual System (POMS) GN 03920.055 to recover the remaining fees
not withheld by defendant. Because plaintiff’s counsel has previously sought and
received a $4,500.00 fee award pursuant to the Equal Access to Justice Act (EAJA),
counsel, upon receipt of the section 406(b) fees from defendant, must refund that
award to plaintiff.
Accordingly, the Motion for Attorney Fees Under 42 U.S.C. § 406(b), filed
by plaintiff, Pravina Desai and plaintiff’s counsel, Miles L. Mitzner (doc. no. 25), is
GRANTED. Plaintiff’s counsel is awarded attorney’s fees under section 406(b) in
the sum of $14,458.50.
Defendant shall pay directly to Mr. Mitzner the $6,000.00 withheld for
attorney’s fees from plaintiff’s past-due benefits. Mr. Mitzner may follow the
procedure set out in POMS GN 03920.055 to recover the attorney fees not withheld
by defendant from plaintiff’s past-due benefits. Upon receipt of the section 406(b)

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fees from defendant, Mr. Mitzner shall refund to plaintiff the previously awarded
EAJA fees of $4,500.00.
IT IS SO ORDERED this 14th day of July, 2021.

19-0154p007.docx

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