French v. Kijakazi

Filing 19

MEMORANDUM OPINION AND ORDER granting Plaintiff's 16 MOTION and BRIEF for Attorney Fees Pursuant to 42 U.S.C. § 406(b); granting the fee request of $22,910.25 pursuant to 42 U.S.C. § 406(b); further granting counsel's reque st that the amount of the refund due claimant, that being $6,500, be deducted from the § 406(b) award, leaving a net payment to counsel of $16,410.25; further directing the Social Security Administration to pay the $16,410.25 fee to counsel from the amounts withheld from Plaintiff's past-due benefits and remit to Plaintiff any remaining amounts that were withheld for attorney fees. Signed by Magistrate Judge Cheryl A. Eifert on 5/8/2024. (cc: counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
STEPHEN F.,
Plaintiff,
v.

Case No.: 3:22-cv-00413

MARTIN O’MALLEY,
Commissioner of the
Social Security Administration,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending is Plaintiff’s Motion and Brief for Attorney Fees Pursuant to 42 U.S.C. §
406(b). (ECF No. 16). Defendant has responded to the Motion indicating that he neither
supports nor opposes same. (ECF No. 18). Having considered the Motion and attached
exhibits, the Court GRANTS both Plaintiff’s Motion for attorneys’ fees and counsel’s
request that the refund due to claimant be effectuated by reducing the total amount of the
§ 406(b) fees by the amount of refund due.
On August 11, 2023, this Court awarded Plaintiff’s counsel $6,500.00 pursuant to
the Equal Access to Justice Act (EAJA) for work expended on behalf of Plaintiff in his
request for judicial review of the final decision of the Commissioner of the Social Security
Administration (SSA) denying Plaintiff disability benefits. On remand from this Court,
Plaintiff received a favorable decision which resulted in a substantial award of past-due
benefits. Plaintiff’s counsel now seeks fees in the amount of $22,910.25 under a
contingent fee agreement wherein Plaintiff agreed to pay counsel up to 25% of past-due
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benefits recovered. Plaintiff’s counsel asks that the contingent fee be paid; he additionally
requests that the $6,500 refund required to be paid for the prior award of fees and costs
be effectuated by counsel reducing the amount of § 406(b) fees he seeks from the SSA.
Once the reduction is done, the net payment to Plaintiff’s counsel will total $16,410.25.
Title 42 U.S.C. § 406(b) allows an attorney, who successfully represents a social
security claimant in an action brought against the Commissioner in federal court, to
receive a reasonable fee not to exceed 25% of the past-due benefits to which the claimant
is entitled. Contingent fee agreements are a common means by which fees are set in Social
Security cases. The provisions of the Social Security Act limiting attorney fees to 25% of
past-due benefits do not displace contingent fee agreements as long as their terms fall
within the statutory maximum. Gisbrecht v. Barnhardt, 535 U.S. 789, 793 (2002). Courts
are required to perform an independent review of the fee agreements, however, to ensure
that “they yield reasonable results in particular cases.” Id. at 807.
In examining a fee request, “judges should constantly remind themselves that,
while the lawyer is entitled to a reasonable compensation for the services rendered by him
in the judicial proceeding, these benefits are provided for the support and maintenance
of the claimant and his dependents and not for the enrichment of members of the bar.”
Redden v. Celebrezze, 370 F.2d 373, 376 (4th Cir. 1966). Even where a requested fee falls
within the 25% cap, “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.’ Mudd v. Barnhart, 418 F.3d 424, 428 (4th Cir. 2005) (quoting
Gisbrecht, 535 U.S. at 808). While the fees awarded under § 406(b) are limited to those
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for court-related work, the reviewing court can consider “as one factor in its
reasonableness determination, the time spent and work performed by counsel on the case
when it was pending at the agency level” because this information gives the court “a better
understanding of factors relevant to its reasonableness inquiry, such as the overall
complexity of the case, the lawyering skills necessary to handle it effectively, the risks
involved, and the significance of the result achieved in district court” Id.
In this case, Plaintiff’s counsel is asking for a net payment made after the previous
award is deducted from the total amount of § 406(b) fees requested. Regardless of how
the refund and award are handled, this Court will conduct its reasonableness analysis
based upon the full amount of § 406(b) fees requested by Plaintiff’s counsel, which total
$22,910.25. The Commissioner takes no position on the reasonableness of the requested
award, or on counsel’s request that the refund due claimant be accomplished by deducting
the refund amount due from the § 406(b) fee amount.
Here, plaintiff signed a contingent fee agreement stating that he would pay his
counsel a fee equal to 25% of all past-due benefits if the SSA favorably decided his claim
at the Appeals Council level or at the ALJ hearing level after a decision by the Appeals
Council or Federal Court. Plaintiff received a favorable ruling after remand from this
Court. Although the fees requested are $673.83 per hour for 34 hours of work, that hourly
rate is not outside of a reasonable range in this circuit. See, e.g., See Jones v. Astrue, No.
1:09cv61-MR, 2012 WL 2568083 (W.D.N.C. June 29, 2012) (awarding § 406(b) attorney's
fees in an amount equal to an hourly rate of $1,060.13, and collecting cases in which the
hourly rate awarded ranged from $446.41 to $1,021.00); Claypool v. Barnhart, 294 F.
Supp. 2d 829, 833 (S.D.W. Va. 2003) (approving a contingency fee agreement with an
hourly rate of $1,433.12); Melvin v. Colvin, No. 5:10-CV-160-FL, 2013 WL 3340490
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(E.D.N.C. July 2, 2013) (approving contingency fee agreement with an hourly rate of
$1,043.92); Hunter v. Comm'r, Soc. Sec. Admin., Civil No. SAG-15-3758, 2017 U.S. Dist.
LEXIS 221544 (D. Md. Nov. 16, 2017) (approving contingency fee agreement with
effective hourly rate of $1,140.41, while noting that the requested rate was “slightly more
than triple the top hourly rate” for an attorney with eleven years of experience). In
addition, counsel have supplied information regarding their length of practice and
expertise, demonstrating that they have considerable experience in social security
disability cases. The work performed by counsel, as detailed in their time records, was
appropriate and necessary, and counsel obtained a very favorable outcome for Plaintiff
without undue delay.
For these reasons, the Court GRANTS the fee request of $22,910.25 pursuant to
42 U.S.C. § 406(b). The Court further GRANTS counsel’s request that the amount of the
refund due claimant—that being $6,500—be deducted from the § 406(b) award, leaving
a net payment to counsel of $16,410.25. The Social Security Administration is
ORDERED to pay the $16,410.25 fee to counsel from the amounts withheld from
Plaintiff’s past-due benefits and remit to Plaintiff any remaining amounts that were
withheld for attorney fees.
The Clerk is directed to provide a copy of this counsel of record.
ENTERED: May 8, 2024

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