Bianco v. Commissioner of the Social Security Administration

Filing 31

ORDER granting 27 Motion for Attorney Fees per Rule 406b. IT IS THEREFORE ORDERED that Plaintiff's attorney is awarded eleven thousand one hundred sixteen dollars ($11,116.00) in attorney fees. Signed by Honorable G Ross Anderson, Jr on 1/13/2015.(gnan )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Linda Bianco,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
________________________________ )

C/A No.: 4:12-cv-00570-GRA

ORDER
(Written Opinion)

Background
This matter comes before this Court on Plaintiff’s Motion for Attorney’s Fees
pursuant to the Social Security Act, 42 U.S.C. § 406(b), filed on December 5, 2014.
ECF No. 27. Plaintiff seeks “$11,116.00, in addition to the previously awarded [Equal
Access to Justice Act (EAJA)] fee.”

Id.

The Plaintiff was previously awarded

$2,964.25 in EAJA fees. ECF No. 26. Plaintiff contends the $11,116.00 is owed as
part of a twenty-five percent contingency fee agreement the Plaintiff entered into with
her attorney. ECF No. 27-2. The past-due benefits awarded for the Plaintiff were
$56,321.00; twenty-five percent of that amount is $14,080.25. ECF No. 27-1. It is
important to note that Plaintiff’s attorney is requesting only $11,116.00 and not the full
$14,080.25.

Id.

By requesting only $11,116.00, Plaintiff is proposing that the

foregone $2,964.25 be used to refund the previously awarded EAJA fees. Id. The
government filed a response on December 30, 2015, ECF No. 28, indicating there is
no opposition to an award of attorney’s fees pursuant to 42 U.S.C. § 406(b).

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Discussion
Fees under the Social Security Act, 42 U.S.C. § 406(b), are awarded from the
claimant’s past-due benefits, are capped at twenty-five percent of the total of the
past-due benefits, and must be reasonable. 42 U.S.C.A. § 406(b)(1)(A). The United
States Supreme Court instructs courts to “approach fee determinations by looking
first to the contingent-fee agreement, then testing it for reasonableness.” Gisbrecht v.
Barnhart, 535 U.S. 789, 808 (2002). Further, courts are to reduce contingency fees
“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. Barnhart, 418 F.3d 424, 428
(4th Cir. 2005) (quoting Gisbrecht, 535 U.S. at 808). The reviewing court must also
not allow a “windfall” of fees for the attorney. Gisbrecht, 535 U.S. at 808.
After a review of the petition and the factors to be considered in awarding
attorney’s fees, the court finds that an award of $11,116.00 is reasonable. This fee is
reasonable because attorney McChesney has a specialized skill set in relation to
Social Security law that he developed over 30 years of practice, he achieved a
successful result in this case without any unreasonable delay, and the attorney fee
amount is not in violation with the twenty-five percent maximum.
In the 1985 Amendments to the Equal Access to Justice Act (“EAJA”),
Congress specified that, if a claimant’s attorney received attorney’s fees under both
the EAJA and section 406(b), “the claimant’s attorney must ‘refun[d] to the claimant
the amount of the smaller fee.’” Gisbrecht, 535 U.S. at 796 (quoting Pub. L. No. 99-

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80 § 3, 99 Stat. 186 (1985)). Attorney’s fees were sought and awarded by this Court
pursuant to the EAJA, 28 U.S.C. § 2412(d).

Plaintiff is refunding those fees by

requesting only $11,116.00 and not the full $14,080.25.
Accordingly, after reviewing the record, Plaintiff’s Motion, and Defendant’s
response, this Court finds that an award of attorney’s fees, pursuant to 42 U.S.C. §
406(b), in the amount of $11,116.00 is appropriate and reasonable.
IT IS THEREFORE ORDERED that Plaintiff’s attorney is awarded eleven
thousand one hundred sixteen dollars ($11,116.00) in attorney fees.
IT IS SO ORDERED.

________________________________
G. Ross Anderson, Jr.

Senior United States District Judge
January 13, 2015
Anderson, South Carolina

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