Brinkley v. Commissioner of Social Security Administration

Filing 26

ORDER granting 23 Plaintiffs Motion for Attorney Fees Under 42 U.S.C. § 406(b). The Court approves an award of attorney fees under 42 U.S.C. § 406(b) to be paid by Defendant to attorney Miles L. Mitzner of Mitzner Law Firm, PLLC in the amount of $21,632.25. Upon payment of this amount, Plaintiffs attorney shall promptly refund to Plaintiff Clyde Brinkley the amount of the previous EAJA fee award of $7,600.00. Signed by Chief Judge Timothy D. DeGiusti on 3/5/2025. (jee)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CLYDE BRINKLEY,

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Plaintiff,
v.
MICHELLE KING,
Acting Commissioner of
Social Security,
Defendant.

Case No. CIV-23-112-D

ORDER
Before the Court is Plaintiff’s Motion for Attorney Fees Under 42 U.S.C. § 406(b)
[Doc. No. 23]. Plaintiff’s attorney, Miles L. Mitzner, seeks approval of a fee award in the
amount of $21,632.25, to be paid out of Plaintiff’s award of past-due benefits in accordance
with a 25-percent contingency fee agreement between him and Plaintiff. Defendant has
filed a Response [Doc. No. 25]. The Commissioner takes no position regarding the Motion,
but reminds the Court of its obligation to determine a reasonable attorney fee and
Mr. Mitzner’s obligation to refund to Plaintiff the lesser of any § 406(b) award or the
amount previously awarded under the Equal Access to Justice Act (“EAJA”).
Upon consideration of the Motion in light of Gisbrecht v. Barnhart, 535 U.S. 789
(2002), and Wrenn v. Astrue, 525 F.3d 931 (10th Cir. 2008), the Court finds that Plaintiff’s
attorney may recover a reasonable fee for the representation of Plaintiff in this case up to
the statutory limit of 25% of past-due benefits, provided the attorney refunds the lesser
EAJA fee award. See Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986); see also Order

Awarding Att’y Fees [Doc. No. 20]. The supporting documents with the Motion, as well
as the case record, show a total of 39.15 hours of legal services performed for Plaintiff’s
representation in this case (35.35 attorney hours and 3.80 paralegal hours), which resulted
in a favorable judicial decision. After remand, Plaintiff was determined to be entitled to
benefits and was awarded a past-due amount of $86,529.00. The Motion has been timely
filed within the deadline previously set by the Court. See 12/27/2024 Order [Doc. No. 22].
Under the circumstances presented, the Court finds that the requested amount of
$21,632.25 represents a reasonable fee award for the work done by Plaintiff’s attorney in
this case, taking into account the contingent-fee agreement and other pertinent factors. See
Gisbrecht, 535 U.S. at 808. 1 The amount does not exceed 25% of Plaintiff’s award of
benefits obtained by reason of the Judgment and Order of Remand [Doc. No. 16] entered
June 8, 2023, and fairly accounts for the contingency nature of the representation and the
delay in receiving payment. The Court finds that $21,632.25 represents a reasonable fee
award under § 406(b).
IT IS THEREFORE ORDERED that the Motion for Attorney Fees Under 42
U.S.C. § 406(b) [Doc. No. 23] is GRANTED, as set forth herein. The Court approves an
award of attorney fees under 42 U.S.C. § 406(b) to be paid by Defendant to attorney Miles

1 Plaintiff’s counsel expended 35.35 hours on this case, not including work performed by
paralegals and other staff. See Pl.’s Mot., Ex. 3 [Doc. No. 23-3] at 2. Given the requested fee of
$21,632.25, this translates to an effective hourly rate of approximately $600.12 ($21,632.25 minus
$418 in paralegal fees, then divided by 35.35 hours of attorney time). This effective hourly rate is
within the bounds established by Gracey v. Astrue, No. CIV-05-823-HE, Doc. No. 38 (W.D. Okla.
Dec. 5, 2008). This effective hourly rate is also in line with the rate Plaintiff’s counsel charges in
non-contingency fee cases. See Pl.’s Mot. at 6 (noting that Mr. Mitzner charges $650 per hour in
non-contingency fee matters).

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L. Mitzner of Mitzner Law Firm, PLLC in the amount of $21,632.25. Upon payment of
this amount, Plaintiff’s attorney shall promptly refund to Plaintiff Clyde Brinkley the
amount of the previous EAJA fee award of $7,600.00.
IT IS SO ORDERED this 5th day of March, 2025.

TIMOTHY D. DeGIUSTI
Chief United States District Judge

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