Barrett v. Commissioner of Social Security Administration

Filing 42

ORDER granting 39 Motion for Attorney Fees per Rule 406b, awarding fees in the amount of $24,801.00. Signed by Magistrate Judge Shiva V. Hodges on 04/07/2016.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
John D. Barrett, Sr.,
Plaintiff,
vs.
Commissioner of Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

C/A No.: 1:14-2398-SVH

ORDER

This matter is before the court on Plaintiff’s counsel’s motion for fees under 42

U.S.C. § 406(b). [ECF No. 39]. On February 13, 2015, the court reversed the
Commissioner’s decision that had denied Plaintiff’s claim for social security disability
benefits and remanded the case for further administrative proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). [ECF No. 31]. On May 11, 2015, the court issued
an order granting Plaintiff’s motion for fees under the Equal Access to Justice Act (“the
EAJA”) and directing the Commissioner to pay Plaintiff $6,606.25. [ECF No. 38]. On
March 18, 2016, counsel informed the court that the Commissioner subsequently
awarded total past-due benefits in the amount of $104,123.80. [ECF No. 39 at 1].
Counsel requested that the court authorize a fee in the amount of $24,801.00, which
represents 25% of past-due benefits1 resulting from the claim, as agreed to by Plaintiff in

1

Although $24,801.00 is not 25% of the total past due benefits of $104,123.80, it appears
that the total accrued benefits payable to the claimant included benefits for months that
were not included for the purpose of calculating the attorney fees. Compare ECF No. 393 at 2 (indicating that Plaintiff will receive $79,322.80 for the period from July 2010

the contingent fee agreement dated June 23, 2014. [ECF Nos. 39, 39-4]. The
Commissioner subsequently filed a response in support of counsel’s request for attorney
fees. [ECF No. 40]. The court has considered the motion for fees, and for the reasons that
follow, the court approves the motion under 42 U.S.C. § 406(b), as set forth herein.
I.

Consideration of Motion for Attorney Fees Under 42 U.S.C. § 406(b)
When a court renders a favorable judgment to a claimant in a claim brought

against the Commissioner, the relevant statute allows the court to “determine and allow
as part of its judgment a reasonable fee” to the claimant’s attorney that is “not in excess
of 25 percent of the total of the past-due benefits to which the claimant is entitled by
reasons of such judgment.” 42 U.S.C. § 406(b)(1)(A). The Supreme Court held in
Gisbrecht v. Barnhardt, 535 U.S. 789 (2002), that 42 U.S.C. § 406(b) instructs courts to
review contingent fee agreements for reasonableness where the agreed-upon fee does not
exceed the statutory ceiling of 25%. However, the contingent fee may be reduced from
the agreed-upon amount “when (1) the fee is out of line ‘with the character of the
representation and the results . . . achieved,’ (2) counsel’s delay caused past-due benefits
to accumulate ‘during the pendency of the case in court,’ or (3) past-due benefits ‘are
large in comparison to the amount of time counsel spent on the case.’” Mudd v.
Barnhardt, 418 F.3d 424, 427 (4th Cir. 2005), citing Gisbrecht at 808.
Counsel filed a copy of the contingent fee agreement, signed by Plaintiff, which
provides for a contingent fee of “25% of the recovery from this case.” See ECF No. 39-4.

through December 2015), with ECF No. 39-3 at 4 (indicating that $24,801.00 was
withheld to represent 25% of past-due benefits for the period through September 2015).
2

Because the fee agreement is presumptively valid under the Supreme Court’s ruling in
Gisbrecht, the court considers only the reasonableness of the fee.
The court concludes that the fee is not out of line with the character of the
representation and the results achieved. Counsel represented the claimant over a period of
approximately a year-and-a-half in both administrative and district court proceedings. See
ECF Nos. 22-2 at 3, 39-1 at 1. Counsel obtained total past-due benefits on claimant’s
behalf in the amount of $104,123.80 for the period from July 2010 through December
2015. [ECF No. 39-3 at 2]. In consideration of the nature of the representation at both the
administrative and district court levels, the period of the representation, and the amount
of past-due benefits obtained for Plaintiff, the court concludes that the fee is not out of
line with the character of the representation and the results achieved.
The court further determines that counsel did not cause any delays that affected
the accumulation of past-due benefits during the pendency of the case in this court.
Although counsel requested one extension, he filed his brief within 10 days of the initial
due date.2 See ECF Nos. 21, 23, 26.
The court finds that the requested fee is not large in comparison to the amount of
time counsel spent on the case. The record reflects that counsel represented the claimant
for 35.75 hours at the district court level. See ECF Nos. 39-1 at 1. Although an hourly
rate of $693.00 seems exorbitant, the undersigned may consider as part of the

2

Because the Commissioner filed her answer on October 22, 2014, Plaintiff’s brief was
initially due on November 24, 2014. [ECF No. 21]. Plaintiff filed a motion for a 30-day
extension on October 23, 2014, which was granted by order of the court on the same day.
See ECF Nos. 23, 24. Counsel subsequently filed a brief on December 3, 2014, more than
three weeks before the extended deadline of December 29, 2014. See ECF Nos. 24, 26.
3

reasonableness determination the work expended by counsel at the agency level. See
Mudd v. Barnhardt, 418 F.3d 424, 428 (4th Cir. 2005) (while the court may not award
attorney’s fees based on the attorney’s work at the agency level, the court may consider
“as one factor in its reasonableness determination, the work performed by counsel on the
case when it was pending at the agency level”). The court remanded the case to the
agency on February 13, 2015. [ECF No. 31]. Counsel represented Plaintiff at the agency
level from February 2015 until a favorable determination was rendered in October 2015.
[ECF No. 39-3]. Based on the length of the administrative process and result achieved,
the undersigned concludes that counsel likely devoted substantial time to the claim at the
administrative level. Therefore, the undersigned concludes that the requested fee is not
unreasonably large in comparison to the amount of time counsel spent on the case.
The court finds that the contingent fee agreement complies with 42 U.S.C. §
406(b)(1)(A) in that it is both reasonable and does not exceed the statutory maximum fee.
The court grants counsel’s motion for fees under 42 U.S.C. § 406(b) and approves a total
attorney’s fee of $24,801.00.
II.

Refund of EAJA Fees
The Gisbrecht Court directed that the attorney should refund the smaller fee to

“the claimant” when the attorney obtained fees under both the EAJA and 42 U.S.C. §
406(b). Therefore, the court directs counsel, upon receipt of the total fee approved herein,
to refund to Plaintiff the $6,606.25 EAJA fee paid in this action.

4

IT IS SO ORDERED.

April 7, 2016
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

5