Fleming v. Commissioner Social Security Administration
ORDER: Plaintiff's motion for attorney's fees 46 is GRANTED. Plaintiff is awarded a total of $23,151.65 in attorney's fees. Signed by Honorable Timothy M. Cain on 2/16/2021. (tsim, )
Date Filed 02/16/21
Entry Number 52
Page 1 of 2
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
Andrew M. Saul, 1 Commissioner of )
Social Security Administration,
Civil Action No. 2:14-cv-2144-TMC
This matter is before the court on Plaintiff Elaine Fleming’s motion for attorney’s fees
pursuant to the Social Security Act, 42 U.S.C. § 406(b). (ECF Nos. 46; 51). Plaintiff seeks an
award of attorney’s fees in the amount of $23,151.65, which Plaintiff contends represents 25% of
the back benefits awarded to Plaintiff. (ECF No. 46-1 at 5–6). The Commissioner has filed a
response informing the court that he does not object to Plaintiff’s motion for fees. (ECF No. 47).
Pursuant to Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002), in reviewing a request for
attorney’s fees under § 406(b), a court must look first to the contingent fee agreement and assess
its reasonableness. A reduction in the contingent fee may be appropriate 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. Id.
Based upon a review of the petition and these factors, the court finds that an award of
$23,151.65 is reasonable. Pursuant to a contingency fee agreement, Plaintiff agreed to pay counsel
On June 17, 2019, Andrew M. Saul became the Commissioner of Social Security. Pursuant to Fed. R. Civ. P. 25(d),
he is automatically substituted as the defendant in this action. See also 42 U.S.C. § 405(g) (providing that action
survives regardless of any change in the person acting as the Commissioner of Social Security.
Date Filed 02/16/21
Entry Number 52
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twenty-five percent (25%) of any past-due benefits. (ECF Nos. 46-1 at 3; 46-2). Plaintiff was
awarded $92,606.60 in back benefits, and twenty-five percent (25%) of this award, or $23,151.65,
was withheld for attorney’s fees. (ECF No. 51 at 3). In compliance with 42 U.S.C. § 406(b)(1)(A),
counsel’s requested total fee does not exceed twenty-five percent (25%) of these past-due benefits.
Furthermore, the requested attorney’s fee is reasonable given the hours counsel expended working
on this matter at the court level. (ECF No. 32-1 at 4, 6). See Wrenn v. Astrue, 525 F.3d 931, 937
(10th Cir. 2008) (noting that under § 406(b) the court makes fee awards only for work done before
the court). Additionally, Plaintiff’s counsel achieved a successful result without any unreasonable
delay. In light of counsel’s specialized skill in social security disability cases, the attorney’s fee
award does not amount to a windfall. Cf. Brown v. Barnhart, 270 F.Supp.2d 769, 772–73 (W.D.
Therefore, based on the foregoing, Plaintiff’s motion for attorney’s fees (ECF No. 46) is
GRANTED, and Plaintiff is awarded a total of $23,151.65 in attorney’s fees. 2
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
February 16, 2021
Anderson, South Carolina
“Fee awards may be made under both [EAJA and § 406(b)], but the claimant’s attorney must
refund to the claimant the amount of the smaller fee[,] . . . up to the point the claimant receives
100 percent of the past-due benefits.” Gisbrecht, 535 U.S. at 796 (internal quotation marks and
citation omitted). Plaintiff was previously awarded $8,000.00 in attorney’s fees under the EAJA
in this action. (ECF No. 45). Accordingly, Plaintiff’s counsel is to refund to the Plaintiff the
previously ordered EAJA fees of $8,000.00 immediately after he receives the payment of the
§ 406(b) fees.
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