Duvall v. Commissioner of Social Security Administration

Filing 43

ORDER granting 36 Motion for Attorney Fees per Rule 406b in the amount of $12,544.00. The Court declines to impose any particular deadline on the issuance of the amount approved but directs Defendant to act in a reasonably prompt and expeditious manner. Signed by Honorable Richard M Gergel on 9/30/2013.(gnan )

IN THE UNITED STATES DISTRICT COU~sr. (:1__
DISTRICT OF SOUTH CAROLINA
Timothy John Duvall,
Plaintiff,
vs.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

zan OCT - I

)
)
)
)
)
)
)
)
)
)

A 1: 35

Civil Action No. 5:11-577-RMG

ORDER

This matter comes before the Court on Plaintiff s motion for approval of an attorney's fee
pursuant to 42 U.S.C. § 406(b)(1)(A) in the amount of $12,544.00, which is in accord with a
25% contingency fee contract entered into by Plaintiff and his counsel. (Dkt. No. 36-1). By way
of background, Plaintiff seeks approval of fees for his counsel's legal services rendered in a
successful appeal of a denial of Social Security disability benefits which resulted in a total
recovery of $50,176.00 in back benefits and the payment of ongoing disability benefits.
Plaintiffs counsel, a highly experienced and able Social Security disability specialist, undertook
this representation on a contingency fee basis, recognizing that she might well receive no
compensation for her efforts should Plaintiff not prevail following his unsuccessful application
for benefits within the agency. Defendant asserts that, while not opposing the motion, the Court
should "carefully consider whether the fee requested results in a windfall to Plaintiffs counsel."
(Dkt. No. 39 at 2).
It is well settled that contingency fees are an entirely proper and customary method of
attorney compensation in Social Security matters and play an important role in assisting needy

-1­

i

persons in obtaining legal representation when denied Social Security benefits. 42 U.S.C.

§ 406(a)(2)(A); Gisbrecht v. Barnhart, 535 U.S. 789, 805 (2002). The Court has a duty to review
the reasonableness of the proposed fee "based on the character of the representation and the
results the representation achieved" and consider whether Plaintiffs counsel would reap a
windfall from the proposed fee. Gisbrecht, 535 U.S. at 808. In considering the reasonableness
of a proposed contingency fee, the district court, utilizing the factors set forth in Johnson v.

Georgia Highway Express, Inc., 488 F.2d 714,717-19 (5th Cir. 1974) abrogated by Blanchardv.
Bergeron, 489 U.S. 87 (1989), Barber v. Kimbrell's Inc., 577 F.2d 216, 226 (4th Cir. 1978), and
Allen v. United States, 606 F.2d 432, 436 n.l (4th Cir. 1979), should give proper weight to the
contingent nature of the fee and the important role the contingency fee method of compensation
plays in affording legal representation to needy persons. In re Abrams & Abrams, P.A., 605 F.3d
238,245-46 (4th Cir. 2010). Other important factors to consider when analyzing the Johnson
factors include the award involved and the results obtained. Id. at 247. If the fee approved for
Plaintiff's counsel was limited to the hourly rate an attorney could earn without the risk of a
contingency fee, as seemingly argued by Defendant, "plaintiffs may find it difficult to obtain
representation." Id. at 246.
Having considered all of the Johnson and Gisbrecht factors, the Court finds that the
proposed contingency fee of $12,544.00 is reasonable. Plaintiffs counsel obtained an
outstanding result for her client in an efficient and effective manner, reversing a long and
unsuccessful effort to obtain disability benefits within the Defendant's agency. While the hourly
rate sought of $972.00 is a generous result here, a longer and more drawn out process could have
produced a small hourly rate or no fee at alL Plaintiff's counsel took that risk and the fee
-2­

approved recognizes and respects the contingent nature of the fee and honors the contract
between Plaintiff and his counsel. l The Court notes other district courts have approved
contingency fees in the same hourly rate range in successful Social Security disability appeals.

Claypool v. Barnhart, 294 F. Supp. 2d 829,833 (S.D.W. Va. 2003) (approving contingency fee
with hourly rate of$I,433.12); Brown v. Barnhardt, 270 F. Supp. 2d 769, 772 (W.D. Va. 2003)
(approving contingency fee with hourly rate of $977.19).
Therefore, the Court grant's Plaintiffs motion to approve a fee in the amount of
$12,544.00 pursuant to 42 U.S.C. § 406(b). (Dkt. No. 36). The Court declines to impose any
particular deadline on the issuance of the amount approved but directs Defendant to act in a
reasonably prompt and expeditious manner.
AND IT IS SO ORDERED.

United States District Court

3;)

September
2013
Charleston, South Carolina

Defendant questioned whether the amount the Court previously awarded under the
Equal Access to Justice Act in this matter was actually diverted to satisfY an outstanding child
support award, as represented by Plaintiffs counsel. (Dkt. No. 36-1 at 3; Dkt. No. 39 at 1,2).
Plaintiff provided ample evidence in reply demonstrating the truthfulness of that representation.
(Dkt. No. 41-1). Perhaps in the future, before Defendant's counsel challenges without any
factual support the honesty and integrity of opposing counsel, she might make some independent
inquiry before raising the issue before the Court. A simple phone call to Plaintiffs counsel could
have avoided the unnecessary and groundless challenge to her integrity.
1

-3­