Nestor v. Commissioner of the Social Security Administration
ORDER granting 26 Motion for Attorney Fees per Rule 406(b)(1) in the amount of $17,517.00. Plaintiffs counsel must refund her EAJA fee award of $6,500.00 to the Plaintiff. Signed by Honorable R Bryan Harwell on 1/19/2017.(gnan )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Tammie Ann Nestor,
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Civil Action No.: 5:15-cv-02120-RBH
This matter is before the Court on Plaintiff’s motion [ECF #26] for attorney fees under 42
U.S.C. § 406(b)(1). Plaintiff’s counsel requests an attorney fee award of $17,517.00, which
represents 25% of the past due benefits for Plaintiff. Plaintiff’s counsel previously received an
attorney fee award under the Equal Access to Justice Act (“EAJA”), 42 U.S.C. § 2412, in the
amount of $6,500.00. Plaintiff’s counsel agrees that any attorney fees awarded under § 406(b)(1)
are subject to offset by a previous EAJA attorney fee award and the lesser of the two amounts must
be refunded to the plaintiff. On January 18, 2017, Defendant filed a response in support of
Plaintiff’s motion and requested that the Court authorize a payment to Plaintiff’s counsel in the
amount of $17,517.00.
Title 42 U.S.C. § 406(b)(1)(A) provides that “[w]henever a court renders a judgment
favorable to a claimant . . . who was represented before the court by an attorney, the court may
determine and allow as part of its judgment a reasonable fee for such representation, not in excess of
25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such
judgment.” 42 U.S.C. § 406(b)(1)(A). In Gisbrecht v. Barnhart, the Supreme Court held that §
406(b) sets a statutory ceiling for attorney fees in social security cases of 25 percent of past-due
benefits and calls for court review of contingency fee agreements to assure that the agreement yields
reasonable results in particular cases. 535 U.S. 789, 807 (2002). Contingency fee agreements are
unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.
Gisbrecht, 535 U.S. at 807. When the contingency fee agreement and requested fee do not exceed
25 percent of the past-due benefits, “the attorney for the successful claimant must show that the fee
sought is reasonable for the services rendered.” Id. Even where the requested fee does not exceed
25 percent of past-due benefits, “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) pastdue benefits ‘are large in comparison to the amount of time counsel spent on the case’” (i.e., the
“windfall” factor). Mudd v. Barnhart, 418 F.3d 424, 428 (4th Cir. 2005) (citing Gisbrecht, 535 U.S.
In considering whether plaintiff’s counsel would receive a “windfall” from the contingency
fee agreement, the Court is mindful of the fact that “contingency fees provide access to counsel for
individuals who would otherwise have difficulty obtaining representation.” In re Abrams & Abrams,
P.A., 605 F.3d 238, 245 (4th Cir. 2010). As the district court noted in Wilson v. Astrue,
there are occasions in the practice of representing claimants where
a 25 percent contingent fee agreement is reached between the
claimant and counsel, but no fee is awarded because of the result
achieved in the case. Thus, adherence to the 25 percent contingent
fee allowed by statute in a successful case such as this one
recognizes the realities facing practitioners representing social
security claimants and sustains those practitioners so as to allow
them to continue to make their services available to other
622 F. Supp. 2d 132, 136-37 (D.Del. 2008); see also Gisbrecht, 535 U.S. at 804 (recognizing that
“the marketplace for Social Security representation operates largely on a contingency fee basis”).
Turning to Plaintiff’s counsel’s fee request, the Court notes that Plaintiff and Plaintiff’s
counsel entered into a contingency fee agreement dated May 13, 2015, which provided that if
Plaintiff or her family received any back benefits after remand or reversal from the federal court,
then Plaintiff agreed to pay Plaintiff’s counsel 25% of past-due benefits due to Plaintiff and her
family. [ECF #26-2]. There is no indication that counsel caused any unusual delays in the case.
After Plaintiff’s counsel filed her brief, Defendant filed a motion to remand the case to the ALJ for
further administrative proceedings. On remand to the ALJ, Plaintiff was awarded Social Security
benefits retroactive to October 2011. According to the Notice of Award, Social Security withheld
$17,517.00 of Plaintiff’s past due benefits to pay her attorney’s fee, which represented 25% of
Plaintiff’s past due benefits. [ECF #26-3]. Plaintiff’s counsel’s time records indicate she expended
38.2 hours on Plaintiff’s case. The Court concludes that Plaintiff’s counsel provided thorough and
adequate representation of Plaintiff. Plaintiff’s counsel’s fee request is reasonable and not in excess
of 25% of Plaintiff’s past due benefits.
For the foregoing reasons, the Court GRANTS Plaintiff’s motion [ECF #26] for attorney
fees under 42 U.S.C. § 406(b)(1) in the amount of $17,517.00. Plaintiff’s counsel must refund her
EAJA fee award of $6,500.00 to the Plaintiff.1
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# 25]. “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 she receives the payment of the § 406(b) fees.
IT IS SO ORDERED.
January 19, 2017
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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