Bonneau v. Commissioner of the Social Security Administration

Filing 33

ORDER granting 28 Motion for Attorney Fees per Rule 406b in the amount of $13,692.50. Signed by Honorable Terry L Wooten on 4/24/2019.(gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Elijah Bonneau,

Civil Action No. 5:16-cv-0118-TLW

Plaintiff,
ORDER

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

This social security matter is before the Court on Plaintiff’s Motion for Attorney Fees
pursuant to 42 U.S.C. § 406(b)(1) and Local Civil Rule 83.VII.07. ECF No. 28. Initially, Plaintiff
filed this action seeking review of the Commissioner’s decision denying her disability claim. ECF
No. 1. However, the Commissioner filed a Motion asking the court to enter a judgement of reversal
and remanding the proceedings back to the Commissioner. ECF No. 18. Plaintiff consented to the
motion, and the Court issued an order granting the Motion to Remand. ECF No. 21.
Plaintiff then filed a Motion for Attorney’s Fees Pursuant to the Equal Access to Justice
Act (“EAJA”), seeking reimbursement for attorney’s fees in the amount of $2,175.35. ECF No.
24. The Commissioner did not object to Plaintiff’s request for EAJA attorney’s fees, ECF No. 25,
and the Court granted the Motion for Attorney’s Fees Pursuant to the EAJA. ECF No. 27.
After the Social Security Administration (“SSA”) issued a Notice of Award to Plaintiff,
indicating her past due benefits, ECF No. 28-2 at 1-4, Plaintiff filed the present motion seeking to
recover $13,692.50 in attorney’s fees based on 25% of the total retroactive benefits awarded. ECF
No. 28. Plaintiff’s motion and supporting memorandum cites relevant case law, details the
calculation of an award of fees, and incorporates a fee agreement with Plaintiff’s counsel.
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ECF Nos. 28-1, 28-3. As required by 42 U.S.C. § 406(b), the amount requested by counsel is not
greater than 25% of the past-due benefits recovered by Plaintiff. The Court finds the motion and
supporting memorandum persuasive in light of the relevant case law cited. See Gisbrecht v.
Barnhart, 535 U.S. 789 (2002); Mudd v. Barnhart, 418 F.3d 424 (4th Cir. 2005); Melvin v. Colvin,
No. 5:10-CV-160-FL, 2013 WL 3340490 (E.D.N.C. July 2, 2013); Claypool v. Barnhart, 294 F.
Supp. 2d 829 (S.D.W. Va. 2003). The Court also notes that the Commissioner “does not object to
Plaintiff’s motion for attorney’s fees under § 206(b) of the Social Security Act, 42 U.S.C.
§ 406(b).” ECF No. 30.
The Court has reviewed the motion, counsel’s fee petition, and the accompanying fee
agreement. After careful review, the Court finds that the request for fees pursuant to § 406(b) is
reasonable. Accordingly, Plaintiff’s Motion for Attorney’s Fees pursuant to the Social Security
Act, 42 U.S.C. § 406(b), ECF No. 28, is hereby GRANTED in the amount of $13,692.50. Also,
because Plaintiff’s attorney was previously awarded attorney’s fees in this action under the EAJA,
the previous EAJA award of $2,175.35 must be refunded to Plaintiff pursuant to Gisbrecht, 535
U.S. at 796. Therefore, counsel’s award of $13,692.50 should be offset by $2,175.35, and that
amount of $2,175.35 should be refunded to the Plaintiff.
IT IS SO ORDERED.
s/Terry L. Wooten
Terry L. Wooten
Senior United States District Judge
April 24, 2019
Columbia, South Carolina

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