Canady v. Commissioner of the Social Security Administration

Filing 53

ORDER granting 47 Motion for Attorney Fees per Rule 406b. The Court Orders that the Commissioner shall pay from the Plaintiff's withheld benefits the amount of $15,316.25 to Plaintiff's attorney for his services in this case. It is further Ordered that the remaining of the amount withheld by the Commissioner-$4,899.00-be disbursed to Plaintiff. Signed by Magistrate Judge Kaymani D West on 10/13/2015.(gnan, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Jennifer Canady,
Plaintiff,

vs.
Carolyn W. Colvin,1 Acting Commissioner
of Social Security Administration,
Defendant.

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C/A No. 5:12-2507-KDW

ORDER
(Plaintiff’s 42 U.S.C. § 406(b)
Motion for Attorney’s Fees)

This matter is before the court on Plaintiff’s unopposed Motion for Attorney’s Fees
pursuant to 42 U.S.C. § 406(b). ECF No. 47. Plaintiff brought this action seeking judicial review
of a final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). On
March 5, 2014, this court ordered the Commissioner’s decision be reversed and remanded the
case to the Commissioner for further administrative proceedings. ECF No. 36. In an August 14,
2014 Order, the court approved an application for Attorney’s Fees under the Equal Access to
Justice Act (EAJA”) in the amount of $4,399.00, without objection from the Commissioner. ECF
No. 42. That sum will be disbursed to Plaintiff according to the terms of her Attorney-Client
Contract with her counsel. See ECF No. 47-2.
On remand, and after a new hearing, the Commissioner issued a Notice of Decision –
Fully Favorable on October 8, 2014, finding Plaintiff had been disabled from May 28, 2008
through the date of the decision and was entitled to benefits, retroactive to that date and
continuing. On February 1, 2015,2 Defendant issued a Notice of Award awarding Plaintiff
retroactive benefits for a total of $81,827.00. The Notice also indicated that the sum of
$20,456.75 was withheld from Plaintiff’s past-due benefits for the payment of attorney’s fees.

1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substituted Carolyn W.
Colvin for Michael J. Astrue as Defendant in this action.
2
The dates the Notices of Awards were issued is supplied by Plaintiff’s counsel. The Notices
provided to the court are undated.

The sum of $6,000.00 was paid to Plaintiff’s attorney and the balance of $14,456.75 was held,
pending court approval. See Notice of Award, ECF No. 47-3 at 1-7.
On March 30, 2015, Plaintiff filed a Motion for Extension of Time to file a Motion of
Approval of Attorney’s Fees under 42 U.S.C. § 406(b) until 30 days after the receipt of the
Notice of Award for Plaintiff’s dependents (auxiliary claimants). ECF No. 43. The court granted
the extension on April 1, 2015. ECF No. 44.
On July 21, 2015, the Commissioner issued a Notice of Award awarding Plaintiff’s son
benefits retroactive from October 2009 through November 2010 in the amount of $6,654.00.
The Notice also indicated that the sum of $1,663.503 was withheld from the past-due benefits for
the payment of attorney’s fees, subject to court approval. ECF No. 47-3 at 7-9. On July 21, 2015,
the Commissioner issued a Notice of Award awarding Plaintiff’s daughter benefits retroactive
from October 2009 through June 2015 in the amount of $16,380.00. The Notice also indicated
that the sum of $4,095.00 was withheld from the past-due benefits for the payment of attorney’s
fees, subject to court approval. ECF No. 47-3 at 10-12.
Plaintiff and her dependents have received retroactive benefits due to counsel’s
successful pursuit of her appeals. Subsequently, Plaintiff’s counsel filed the instant Motion on
August 20, 2015, seeking approval of attorney’s fees for 88.25 hours of attorney representation.
ECF No. 47. This includes 34.00 hours certified by Plaintiff’s attorney for court proceedings,
plus an additional 54.25 hours expended in agency proceedings. See Attorney Time Sheet, ECF
No. 47-4.
The amount sought by Plaintiff’s counsel is derived from $26,215.25, which is 25 percent
of the $104,861.00 total past-due benefits awarded to Plaintiff and her auxiliary beneficiaries.
After a credit of $4,399.00, which was ordered to be paid under the EAJA, and $6,000.00
previously paid after the issuance of the Favorable Decision, the amount Plaintiff’s counsel seeks
to be paid from Plaintiff’s past-due benefits is $15,316.25. See ECF No. 41-1 at 3, 6. The
Commissioner filed her response indicating she has no objection to the fees sought. ECF No. 50.
When a court renders a favorable judgment to a claimant in a claim brought against the
Commissioner, the relevant statute allows the court to “determine and allow as part of its

3
In what is likely a clerical error, the Motion indicates the amount withheld from the past-due
benefits awarded to Plaintiff’s son was $1,163.50, ECF No. 47-1 at 3, rather than $1663.50, as
the Notice indicates, ECF No. 47-3 at 2.
2 

judgment a reasonab fee” to th claimant’s attorney th is “not in excess of 2 percent o the
t
ble
he
hat
n
25
of
total of th past-due benefits to which the cl
he
w
laimant is en
ntitled by re
easons of suc judgment 42
ch
t.”
U.S.C. § 406(b)(1)(A The Sup
A).
preme Court held in Gis
sbrecht v. Ba
arnhardt, 53 U.S. 789 808
35
9,
(2002), that 42 U.S
t
S.C. § 406( instructs courts to review con
(b)
s
ntingent fee agreement for
e
ts
reasonableness when the agreedn
-upon fee does not excee the statuto ceiling o 25 percent
ed
ory
of
t.
Having review the reco and the time expend in the ju
H
wed
ord
ded
udicial proce
eedings, the court
conclude that the am
es
mount sough is a reason
ht
nable and jus fee to be p
st
paid to Plain
ntiff’s counsel for
his servic before th court. Gis
ces
he
sbrecht v. Ba
arnhart, 535 U.S. 789 (2
2002).
The court no
T
otes that, acc
cording to its own calc
i
culations, tho
ough, the am
mount rema
aining
when the $4399.00 and the $60
e
000.00 cred are dedu
dits
ucted from t $26,215
the
5.25 (25% o the
of
$104,861
1.00 total pa
ast-due bene
efits), is $15
5,816.25. No
onetheless, b
based on th amount so
he
ought
and agree to withou objection from the Com
ed
ut
f
mmissioner, the court he
,
ereby
ORDERS th the Mot
O
hat
tion for Att
torney’s Fe
ees, ECF N 47, be g
No.
granted, and the
d
Commiss
sioner shall pay from the Plaintiff withheld benefits th amount o $15,316.2 to
t
f’s
d
he
of
25
Plaintiff’s attorney for his services in this case. It is fu
f
c
urther ordered that the remaining o the
of
amount withheld by the Comm
w
y
missioner—$
$4,899.00—b disburse to Plainti This am
—be
ed
iff.
mount
provides a refund to Plaintiff ov the EAJ award am
o
ver
JA
mount.4 See Gisbrecht, 535 U.S. at 796
e
t
(noting amount of su
a
uccessful cla
aimant’s pas
st-due-benef award will be increas by the E
fit
sed
EAJA
award up to point of receiving 10 percent of past-due be
p
00
f
enefits).

IT IS SO ORD
T
DERED.

October 13, 2015
olina
Florence, South Caro

Kayman D. West
ni
United S
States Magistrate Judge

4
The rem
maining amo
ount withheld by the Commissione after the f Plaintiff has request is
er
fee
f
ted
deducted is actually $4,899.00, which is $500 more than the $4
d
y
,
$
4,399.00 EA
AJA award. This
differenc is attribut
ce
table to the apparent cle
erical error mentioned in note 3, s
supra. Again the
n,
court is approving the award as requested by Plaintif
t
a
ff’s counsel and not ob
bjected to by the
y
Commiss
sioner.
3