Powell v. Commissioner of the Social Security Administration

Filing 55

ORDER granting 49 Motion for Attorney Fees per Rule 406b. Plaintiff is awarded $15,818.00 in attorneys fees, as requested. Signed by Honorable Timothy M Cain on 12/22/2014.(mcot, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
)
)
Plaintiff, )
)
)
v.
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)
Carolyn W. Colvin,
)
Acting Commissioner of Social Security,1
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Defendant. )
)

Jerry Powell,

C/A No. 4:11-2913-TMC

ORDER

This matter is before the court on Plaintiff’s motion for attorney's fees pursuant to the
Social Security Act, 42 U.S.C. § 406(b). (ECF No. 49). Plaintiff seeks an award of attorney's
fees in the amount of $15,818.00.

Id. The Commissioner has filed a response informing the

court that she does not object to Plaintiff’s motion for fees. (ECF No. 52).
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
$15,818.00 is reasonable. Pursuant to a contingency fee agreement, Plaintiff agreed to pay
counsel twenty-five percent (25%) of any past-due benefits. Plaintiff was awarded $42,529.00 in
back benefits, and his auxiliaries were awarded $20,744.00 in back benefits. Therefore, in

1

Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2012.
Pursuant to Fed. R. Civ. P. 25(d), Colvin should be substituted for Michael J. Astrue.

compliance with 42 U.S.C. § 406(b)(1)(A), counsel's requested fee does not exceed twenty-five
percent (25%) of these past-due benefits. Furthermore, the requested attorney's fee is reasonable
given that counsel expended 9.00 hours working on this matter at the court level, together with
27.5 hours expended by counsel’s paralegals. 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.Va. 2003).
Therefore, based on the foregoing, Plaintiff’s motion for attorney’s fees (ECF No. 49) is
granted and Plaintiff is awarded $15,818.00 in attorney’s fees, as requested.2
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
December 22, 2014
Anderson, South Carolina

2

Plaintiff’s counsel was previously awarded a lesser amount of fees under the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”). (ECF No. 43). “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). Accordingly, Plaintiff's counsel is to refund to the Plaintiff the previously ordered EAJA fees immediately
after he receives the payment of the § 406(b) fees.