Steele v. Berryhill

Filing 24

MEMORANDUM AND ORDER 21 granting First MOTION for Attorney Fees (Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARIAN CLAIRE STEELE,
Plaintiff,
V.
ANDREW SAUL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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September 14, 2020
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-3539

MEMORANDUM AND ORDER
Pending is Plaintiff’s Attorney, James F. Andrews’ “Motion for Attorney’s Fees Pursuant to
Section 206(b) of the Social Security Act” (Document No. 21), in which Andrews seeks, pursuant to

a written Fee Agreement, attorneys fees of $25,457.25, which represents 25% of the past due Social
Security Disability Insurance benefits that were awarded to Plaintiff following the remand of this
case to the Commissioner pursuant to 42 U.S.C. § 405(g). Defendant takes no particular position
on the reasonableness of the attorney’s fees sought, but does advise the Court that it must
independently assess the reasonableness of that requested fee.
On March 20, 2019, Plaintiff’s opposed Motion for Summary Judgment was granted, and the
matter was remanded to the Social Security Administration for further proceedings pursuant to
Sentence Four of 42 U.S.C. § 405(g). (Document Nos. 17 & 18). Thereafter, a favorable decision
was issued to Plaintiff, and she was awarded disability benefits and awarded past due disability
benefits totaling $101,829.00. In addition, pursuant to the written fee agreement, 25 percent of the
back benefits ($25,457.25) was withheld for attorney fees. Andrews requests that the amount withheld
be awarded to him. Having conducted an independent review of the record, including counsel’s time
records, the attorney fee agreement, the Cost of Living indexes which have bearing on the hourly EAJA
rate, and the prior EAJA fee award, the undersigned Court concludes that the requested attorney fee

amount of $25,457.25 is reasonable under the facts and circumstances of this case.

42 U.S.C. § 406 governs attorney’s fees for the representation of clients claiming Social
Security Disability benefits. Section 406(a) governs the award of attorney’s fees for representing a
claimant in administrative proceedings. Section 406(b) governs the award of attorney’s fees for
representing a claimant in court. See Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). Section
406(b)(1)(A), provides, in pertinent part:
Whenever a court renders a judgment favorable to a claimant under this subchapter
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.
A prevailing claimant may collect fees under both the Social Security Act and the Equal Access to
Justice Act, but the claimant’s attorney must “refun[d] to the claimant the amount of the smaller fee.”
Gisbrecht, 535 U.S. at 796.
In Gisbrecht, the United States Supreme Court considered “[w]hat is the appropriate starting
point for judicial determinations of `a reasonable fee for [representation before the court]’? Is the
contingent-fee agreement between claimant and counsel, if not in excess of 25 percent of past-due
benefits, presumptively reasonable? Or should courts begin with a lodestar calculation (hours
reasonable spent on the case times reasonable hourly rate) of the kind we have approved under statutes
that shift the obligation to pay to the loser in the litigation?” (citation omitted). The Supreme Court
concluded that § 406(b) did not displace contingent-fee agreements within the statutory ceiling. The
Court wrote:
§ 406(b) does not displace contingent-fee agreements as the primary means by which
fees are set for successfully representing Social Security benefits claimants in court.
Rather, § 406(b) calls for court review of such arrangements as an independent check,
to assure that they yield reasonable results in particular cases. Congress has provided
one boundary line: Agreements are unenforceable to the extent that they provide for
fees exceeding 25 percent of the past-due benefits. § 406(b)(1)(A) (1994 ed., Supp.
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V). Within the 25 percent boundary, as petitioners in this case acknowledge, the
attorney for the successful claimant must show that the fee sought is reasonable for the
services rendered.
Id at 1827. In considering the reasonableness of a contingency fee award, a number of factors are
considered, including the quality of the attorney’s representation, whether the attorney engaged in
dilatory conduct to increase the amount of past due benefits or whether the award constitutes a
“windfall” for the attorney. Gisbrecht, 535 U.S. at 808, Jeter v. Astrue, 622 F.3d 371, 377 (5th Cir.
2010). With respect to an “unearned advantage,” consideration must be given to whether an attorney’s
success is attributable to his own work or instead to some unearned advantage for which it would not
be reasonable to compensate him.” Id. According to the Fifth Circuit, an example where it would not
be a windfall to compensate an attorney is where the success is attributable to the attorney’s efforts.
Simply put, “if a claimant’s success on appeal can be attributed to his attorney’s endeavors before the
district court, then that attorney should reap the benefit of his work – even if he managed to accomplish
a great deal in a small window of time.” Id. at 381.
The Fifth Circuit in Jeter declined to prescribe an exhaustive list of precise factors that must
be considered, in assessing the reasonableness of an attorney fee award, but identified factors that
could be considered such as the risk of loss in the representation, experience of the attorney, percentage
of the past due benefits the fee constitutes, value of the case to the claimant, degree of difficulty, and
whether the client consented to the requested fee. Id. at 381. Applying the factors suggested in Jeter
it is clear that Andrews obtained excellent results for Plaintiff. There is no evidence that Andrews
caused any unnecessary delay in the proceedings. The requested fee does not result in any windfall
to Andrews. The award of past due benefits totaling $$101,829.00, and the continuing award of
monthly disability benefits to Plaintiff was the direct result of Andrews’ advocacy. The amount
requested is in accord with the fee agreement. Plaintiff has consented to the requested fee. Andrews
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devoted considerable time to Plaintiff’s case and Plaintiff’s medical records were extensive. Finally,
Andrews assumed a risk in accepting the instant representation. “‘Counsel always are accepting
some risk in taking social security cases under contingency fee contracts because, statistically,
roughly fifty percent will lose at the district court level.” We note that before this Court, the success
rate is significantly lower than the rate of success before district courts.” Jeter, 622 F.2d at 380 n.
9 (quoting from Mentzell v. Astrue, 623 F.Supp.2d 1337, 1340-41 (M.D. Fla. 2008)). After
weighing the relevant factors, and considering comparable cases, see e.g., Doskocil v. Comm'r of
Soc. Sec., No. 3:17-CV-2434-L-BK, 2020 WL 4195955, at *2 (N.D. Tex. June 11, 2020) (and cases
cited therein), report and recommendation adopted sub nom. Doskocil v. Comm'r, Soc. Sec., No.
3:17-CV-2434-L, 2020 WL 4192617 (N.D. Tex. July 21, 2020), the Court concludes that the amount
sought by Andrews is reasonable.
Finally, because attorney’s fees were previously awarded under EAJA, Andrews must refund
the smaller EAJA fee amount of $8,044.16, directly to Plaintiff.
Based on the foregoing, it is
ORDERED that Plaintiff’s Attorney, James F. Andrews’ “Motion for Attorney’s Fees Pursuant
to Section 206(b) of the Social Security Act” (Document No. 21) is GRANTED, and Plaintiff’s counsel,

James F. Andrews, is awarded $25,457.25 in attorney’s fees to be certified for payment out of Steele’s
past-due benefits under 42 U.S.C.§ 406(b). Mr. Andrews shall remit the previously awarded EAJA
fee award of $8,044.16 directly to Plaintiff.
Signed at Houston, Texas, this 14th day of September, 2020.

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