Forrester v. Commissioner of Social Security Administration

Filing 50

ORDER granting 46 Motion for Attorney Fees per Rule 406b, awarding fees in the amount of $9,043.00. Signed by Honorable J. Michelle Childs on 01/20/2017.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Amy C. Forrester,
Plaintiff,
v.
Commissioner of the
Social Security Administration,
Defendant.

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Civil Action No.: 1:12-cv-02111-JMC
ORDER

Plaintiff’s attorney, Robertson H. Wendt, Jr. (“Counsel”), filed the instant action (ECF No.
46) for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b)(1) and Local Rule 83.VII.07
(D.S.C.).1 On October 11, 2016, Counsel filed a Motion for Attorney’s Fees (ECF No. 46)2
seeking reimbursement for Counsel’s representation in the captioned matter,3 in the amount of
$15,043.00 for attorney fees, less the amount of $6,000.00 previously paid by the Commissioner
of the Social Security Administration (“Defendant”) to Counsel. The $15,043.00 award amounts
to twenty-five percent of the past-due benefits withheld by the Social Security Administration
(“SSA”) for attorney’s fees. (See Notice of Award, ECF No. 46-4.)

Plaintiff filed a motion for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA) on
April 30, 2014. (ECF No. 41, see 28 U.S.C. § 2412.) On June 22, 2015, the United States District
Court issued an order denying attorney’s fees while allowing for an award of costs. (ECF No. 45.)
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The motion was filed within the required sixty day period after the issuance of a notice of award
by the Social Security Administration (“SSA”), pursuant to Local Rule 83.VII.07(A) (D.S.C.).
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This action began on July 27, 2012 when Plaintiff, pursuant to 42 U.S.C. § 405(g), filed a
Complaint against the SSA seeking judicial review of a decision denying Plaintiff disability
insurance benefits (“DIB”). (ECF No. 1.) On March 31, 2014, the United States District Court
reversed and remanded the case to the SSA Commissioner (ECF No. 39), and on May 16, 2016,
the Administrative Law Judge (“ALJ”) ruled in favor of Plaintiff, and Plaintiff was awarded pastdue benefits in the amount of $60,172.00. (ECF No. 46-1 at 1.)
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On November 10, 2016, Defendant filed a Response to Counsel’s motion, posing no
objection. (ECF No. 47.) Defendant did question, however, the necessity in being a party to the
motion, arguing that fees awarded under § 406(b) are paid from claimant’s benefits. (Id.)
After reviewing Counsel’s supporting memorandum (ECF No. 46-1), Plaintiff’s Attorney
Fee Agreement (ECF No. 46-3), and the SSA’s Notice of Award (ECF No. 46-4), the court
concludes Counsel’s request for attorney’s fees reasonable.4
Therefore, Counsel is entitled to an award of attorney’s fees pursuant to 42 U.S.C. §
406(b)(1) in the amount of $9,043.00 ($15,043.00 less the amount of $6,000.00 previously paid
by Defendant to Counsel). Fees granted pursuant to 42 U.S.C. § 406(b)(1) are paid from Plaintiff’s
past-due benefits, rather than from SSA agency funds. Defendant is currently withholding the
$9,043.00 remainder. (See ECF No. 46-4.)
Based on the aforementioned reasons and a thorough review of the record in this case,
Counsel’s Motion for Attorney’s Fees (ECF No. 46) is GRANTED, and the court orders
Defendant to certify and release the $9,043.00 remainder of the past-due benefits to Counsel.
IT IS SO ORDERED.

United States District Judge
January 20, 2017
Columbia, South Carolina

Counsel’s motion satisfies the requirements of Gisbrecht v. Barnhart, 535 U.S. 789 (2002), and
the reasonableness requirement of § 406(b)(1). The fee requested does not exceed 25% of the
past-due benefits, there is no evidence of substandard attorney services, and the amount of the
award is not extraordinarily large in comparison to the amount of time Counsel spent on the case.
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