Rogers v. Commissioner of the Social Security Administration

Filing 37

ORDER granting 29 Motion for Attorney Fees per Rule 406b: Therefore, based on the foregoing, Plaintiffs motion for attorneys fees (ECF No. 29) is granted and Plaintiff is awarded $12,356.74 in attorneys fees, as requested. IT IS SO ORDERED. Signed by Honorable Timothy M Cain on 2/2/2015.(amil, ) Modified typo on 2/2/2015 (amil, ).

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

C/A No. 4:13-945-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. 29). Plaintiff seeks an award of attorney's
fees in the amount of $12,356.74. Id. The Commissioner filed a response on January 12, 2015.
(ECF No. 31). Although the Commissioner did not object to the request for attorney fees in the
amount of $12,356.74, she requested that the court delay issuing an award of attorney fees until the
final computation of the past due disability insurance benefits (“DIB”). (ECF No. 31 at 2). On
January 15, 2015, Plaintiff filed a reply to the Commissioner’s response. (ECF No. 32). On
January 30, 2015, the Commissioner filed a response stating that the final computation of DIB had
been calculated, and that she is in support of the fee amount of $12,356.74.
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
$12,356.74 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 $18,806.94 in
back benefits for disability insurance and $14,105.20 for supplemental security income and, in
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 37.25 hours working on this matter at the court level. 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. 29) is
granted and Plaintiff is awarded $12,356.74 in attorney’s fees, as requested.1
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
February 2, 2015
Anderson, South Carolina

1

Plaintiff was previously awarded $5,500.00 in attorney's fees under the Equal Access to Justice Act (“EAJA”).
(ECF No. 28). Generally, an award of § 406(b) fees must be offset by any prior award of attorney fees granted
pursuant to the EAJA. Gisbrecht, 535 U.S. at 796. However, because the Department of Treasury intercepted that
amount to pay back child support owed by Plaintiff (ECF No. 29-6), the fees awarded pursuant to § 406(b) are not to
be offset by the EAJA award.

2