Kendall v. Commissioner of the Social Security Administration

Filing 57

ORDER granting 52 Motion for Attorney Fees per Rule 406b in the amount of $11,420.50. Signed by Honorable Timothy M Cain on 8/1/2017.(gnan )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Jacquelyn Marie Kendall,

)
)
Plaintiff, )
)
v.
)
)
Nancy A. Berryhill,
)
Acting Commissioner of Social Security, )
)
Defendant. )

Civil Action No. 5:12-3060-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. 52). Plaintiff seeks an award of attorney's fees in the
amount of $11,420.50. (ECF No. 52 at 1). The Commissioner has filed a response informing the
court that she does not object to Plaintiff’s motion for fees. (ECF No. 54).1
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
$11,420.50 is reasonable. Pursuant to a contingency fee agreement, Plaintiff agreed to pay counsel
twenty-five percent (25%) of any past-due benefits. (ECF No. 52-3). Plaintiff was awarded

1

Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration
on January 23, 2017. Pursuant to Fed. R. Civ. P. 25(d), Berryhill should be substituted for Carolyn
W. Colvin as the defendant in this action.

$45,682.00 in back benefits (ECF No. 52-2 at 52) 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 34.75 hours
working on this matter at the court level. (ECF No. 52-1 at 3). 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. 52) is
granted, and Plaintiff is awarded $11,420.50 in attorney’s fees, as requested.2
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge

August 1, 2017
Anderson, South Carolina

2

Plaintiff’s counsel was previously awarded a lesser amount of fees under the Equal Access
to Justice Act, 28 U.S.C. § 2412 (“EAJA”). (ECF No. 51). “Fee awards may be made under both
[EAJA and § 406(b) ], but the claimant's attorney must refund to the claimant the amount of the
smaller fee . . . up to the point the claimant receives 100 percent of the past-due benefits.” Gisbrecht,
535 U.S. at 796 (internal quotation marks and citation omitted). Accordingly, Plaintiff's counsel is to
refund to the Plaintiff the previously ordered EAJA fees immediately after he receives the payment of
the § 406(b) fees.

2