Walling v. Commissioner of the Social Security Administration

Filing 38

ORDER: IT IS ORDERED that Plaintiff's Motion for Attorney's Fees pursuant to the Social Security Act, 42 U.S.C. § 406(b), ECF No. 33 , is hereby GRANTED in the amount of $41,040.70. Signed by Honorable Terry L Wooten on 4/10/2019.(gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
DEBORAH DUBOSE WALLING,

Case No. 4:15-cv-03246-TLW

Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
ORDER
Plaintiff filed this action seeking review of the Commissioner’s decision
denying her disability claim. ECF No. 1. On November 15, 2016, United States
Magistrate Judge Thomas E. Rogers, III issued a Report and Recommendation which
recommended reversing the Commissioner’s decision and remanding the case for
further administrative action. ECF No. 21. The Commissioner did not object to the
Report, and on December 7, 2016, the Court accepted the Report and remanded the
case. ECF Nos. 23, 27. Plaintiff then moved for attorney’s fees of $2,456.64 under the
Equal Access to Justice Act (EAJA), ECF No. 29, which the Court granted, ECF No.
32. On December 17, 2018, the Social Security Administration issued a Notice of
Award to Plaintiff, indicating that Plaintiff would receive retroactive benefits
beginning in March of 2007. ECF No. 33-2. The Court notes the Commissioner does
not object to Plaintiff’s counsel’s request for § 406(b) fees in the amount of $41,040.70,

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but states there should be an offset, or refund, of $5,986.51 in EAJA fees for the
Plaintiff. ECF No. 35.
This social security matter is now before the Court on Plaintiff’s counsel’s
Motion for Attorney Fees pursuant to 42 U.S.C. § 406(b)(1) and Local Civil Rule
83.VII.07. ECF No. 33. Plaintiff’s attorney seeks to recover $41,040.70 in attorney’s
fees based on 25% of the total retroactive benefits awarded. Id. The motion and
related filings include relevant case law, the time sheet for Plaintiff’s counsel, and
the fee agreement between Plaintiff and her counsel providing for a 25% fee for
counsel. ECF No. 33. Notably, as stated, the Commissioner agrees that counsel for
Plaintiff should receive $41,040.70 in § 406(b) fees. ECF No. 35. However, the
Commissioner argues that the amount should be offset by $5,986.51, the total amount
of EAJA fees awarded to counsel in Plaintiff’s cases, pursuant to Gisbrecht v.

Barnhart, 535 U.S. 789 (2002) and Parrish v. Commissioner of Social Security, 698
F.3d 1215 (9th Cir. 2012). Id.
The Social Security Act provides that the Court may determine and allow a
reasonable fee for representation not to exceed 25% of the total past-due benefits to
which the claimant is entitled. 42 U.S.C. § 406(b)(1)(A). The Court concludes that
counsel in this case has obtained a favorable result for the Plaintiff, caused no
unusual delay, and has provided thorough and diligent representation. Furthermore,
the amount requested by counsel is not greater than 25% of the past-due benefits
recovered by Plaintiff as required by 42 U.S.C. § 406(b).
In light of the history of this case and the result achieved, the Court finds that

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the fee agreement, signed by the Plaintiff and designating a 25% fee for counsel, and
the § 406(b) fees of 25% are reasonable. The Court notes that counsel began work on
this case in 2010. Plaintiff’s first appeal of the ALJ’s decision was filed in the district
court in 2010. Plaintiff’s case was remanded to the ALJ, after which she was denied
benefits. Then, Plaintiff appealed the second denial of benefits, filing her second
federal case in 2012. That case was also remanded to the ALJ, after which she was
denied benefits a third time. Plaintiff then filed the instant case, her third appeal to
the district court. This case was remanded to the ALJ, and, as a result, Plaintiff
received retroactive benefits. Counsel represented Plaintiff throughout the process
and, as noted, now requests § 406(b) fees in the amount of $41,040.70.
The Court has carefully reviewed the relevant case law, the filings, counsel’s
fee petition, and the accompanying fee agreement. In light of the fact that the
Commissioner does not object, the Court finds that the request for fees pursuant to
§ 406(b) is reasonable. Further, the Court notes that,
an award under § 406(b) compensates an attorney for all the attorney’s
work before a federal court on behalf of a Social Security claimant in
connection with the action that resulted in past-due benefits. . . . Where
the same attorney represented a claimant at each stage of judicial
review, the court need merely offset all EAJA awards against the
§ 406(b) award.

Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1221 (9th Cir. 2012).
Accordingly, IT IS ORDERED that Plaintiff’s Motion for Attorney’s Fees pursuant to
the Social Security Act, 42 U.S.C. § 406(b), ECF No. 33, is hereby GRANTED in the
amount of $41,040.70. Because Plaintiff’s attorney was previously awarded attorney’s

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fees pursuant to the EAJA in two of Plaintiff’s cases, the Court finds that the amount
of EAJA fees must be refunded to the Plaintiff pursuant to Gisbrecht v. Barnhart,
535 U.S. at 796, and Parrish v. Commissioner, 698 F.3d at 1221. Therefore, counsel’s
award of $41,040.70 should be offset by $5,986.51, and that amount of $5,986.51
should be refunded to the Plaintiff.
IT IS SO ORDERED.

s/ Terry L. Wooten

Terry L. Wooten
Senior United States District Judge
April 10, 2019
Columbia, South Carolina

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