Tropper v. Commissioner of Social Security Administration

Filing 28

ORDER granting 24 Motion for Attorney Fees per Rule 406b. Signed by Honorable Timothy M Cain on 12/17/2018.(abuc)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Christopher J. Topper,

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

C/A No. 6:16-3196-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. 24). Plaintiff seeks an award of attorney’s fees in the
amount of $40,942.10, which represents 25% of the back benefits awarded to Plaintiff. (ECF No.
24-1 at 1). The Commissioner has filed a response informing the court that she does not object to
Plaintiff’s motion for fees in the amount of $40,942.10. (ECF No. 26).
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
$40,942.10 is reasonable. Pursuant to a contingency fee agreement, Plaintiff agreed to pay counsel
twenty-five percent (25%) of any past-due benefits. (ECF No. 24-4). Plaintiff was awarded back
benefits of $163,768.40, and 25% of the award was withheld for attorney’s fees, or $40,942.10.

(ECF Nos. 24-1 at 1-2, 24-8 at 2). 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 29.3 hours were expended working on this
matter at the court level. (ECF No. 24-1 at 2). 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. 24) is
granted, and Plaintiff is awarded a total of $40,942.10 in attorney’s fees.1
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge

December 17, 2018
Anderson, South Carolina

1

“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 v. Barnhart, 535 U.S. 789, 796 (2002)
(internal quotation marks and citation omitted). Plaintiff has previously been awarded $6,700.00
in attorney’s fees under the EAJA. (ECF No. 29). 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