Foster v. Commissioner of the Social Security Administration

Filing 35

ORDER granting 29 Motion for Attorney Fees per Rule 406b in the amount of $22,584.25. Signed by Honorable J Michelle Childs on 5/29/2019.(gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Terry R. Foster,

)
)
Plaintiff,
)
)
v.
)
)
)
Commissioner of Social Security
)
Administration,
)
)
Defendant.
)
____________________________________)

Civil Action No.: 4:16-cv-02472-JMC
ORDER

This matter is before the court on Plaintiff Terry R. Foster’s (“Plaintiff”) Motion for
Attorney’s Fees under the Social Security Act (“the Act”), 42 U.S.C. § 406(b), filed on January
28, 2019. (ECF No. 29.) Defendant Commissioner of Social Security Administration (“the
Commissioner”) responded to Plaintiff’s Motion on February 11, 2019, and requested the court to
hold Plaintiff’s Motion in abeyance because the Commissioner “had not yet calculated Plaintiff’s
past-due benefits, [which made it] impossible to determine whether his 406(b) Motion seeks
payment of fees in excess of 25 percent of the total past-due benefits.” (ECF No. 31 at 2.) On May
13, 2019, Plaintiff filed a Supplemental Motion for Attorney’s Fees and moved the court for an
award of twenty-two thousand five hundred eighty-four dollars and twenty-five cents ($22,584.25)
based upon the Commissioner’s calculation of the fees on February 7, 2019 (ECF No. 34-1 at 3).
(ECF No. 34 at 1.) To date, the Commissioner has not issued any response to Plaintiff’s
Supplemental Motion. After reviewing Plaintiff’s Motion (ECF No. 29), the Commissioner’s
Response (ECF No. 31), and Plaintiff’s Supplemental Motion (ECF No. 34), the court finds that
Plaintiff’s request for fees is reasonable and that Plaintiff is entitled to an award of attorney’s fees
under the Act in the amount of twenty-five percent (25%) of Plaintiff’s past-due benefits.
1

In accordance with Gisbrecht v. Barnhart, when fees are awarded under 42 U.S.C. §
406(b), a court must look to the contingent fee agreement and assess its reasonableness. 535 U.S.
789, 808 (2002). 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 Motion and these factors, the court finds than an award of
$22,584.25 is reasonable. Pursuant to the contingency fee agreement, Plaintiff agreed to pay
counsel twenty-five percent of any past-due benefits. (ECF No. 29-4.) In compliance with 42 U.S.
406(b)(1)(A) and representations from the Commissioner, Plaintiff’s requested fee does not exceed
twenty-five percent of any past-due benefits (ECF No. 34-1 at 3). See Helms v. Colvin, C/A No.
5:15-cv-668-TMC, 2016 WL 7212757, at *1 (D.S.C. Dec. 13, 2016); Hunt v. Astrue, C/A No.
4:07–3561–HMH–TER, 2009 WL 2148130, at *1 (D.S.C. July 15, 2009). Furthermore, the
requested attorney’s fee is reasonable given that counsel expended a total of thirteen (13) hours
and fifteen (15) minutes working on this matter at the court level (ECF No. 29-3 at 5). 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. Va. 2003). Lastly, the Commissioner has not filed any
response in opposition to Plaintiff’s Supplemental Motion.
After a thorough review of Plaintiff’s Motion (ECF No. 29), the Commissioner’s Response
(ECF No. 31), and Plaintiff’s Supplemental Motion (ECF No. 34), the court GRANTS Plaintiff’s

2

Motion for Attorney’s Fees (ECF No. 29) and awards $22,584.25 in attorney’s fees.
IT IS SO ORDERED.

United States District Judge

May 29, 2019
Columbia, South Carolina

3