United States District Court, D. Kansas
CONNIE L. HENNIGH, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
matter is before the court on a motion for approval of an
attorney fee (Doc. 27) (hereinafter 406B Mot.) pursuant to
the Social Security Act, 42 U.S.C. § 406(b). The Acting
Commissioner of the Social Security Administration
(hereinafter Commissioner) does not object to award of the
fee requested. The court GRANTS Plaintiff's motion,
approving fees in the amount of $5, 526.70 pursuant to the
Social Security Act.
Social Security Act provides for the payment of an attorney
fee out of the past due benefits awarded to a beneficiary. 42
U.S.C. § 406(b). The court has discretion to approve
such a fee. McGraw v. Barnhart, 450 F.3d 493, 497-98
(10th Cir. 2006). However the court has an affirmative duty
to allow only so much of the fee as is reasonable.
Gisbrecht v. Barnhart, 535 U.S. 789, 807-808 (2002);
McGraw, 450 F.3d at 498; 42 U.S.C. §
(1)(A) 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, and the Commissioner of
Social Security may, . . . certify the amount of such fee for
payment to such attorney out of, and not in addition to, the
amount of such past-due benefits.
42 U.S.C. § 406(b)(1)(A) (emphasis added).
Supreme Court, in Gisbrecht determined that a
contingency fee agreement within the twenty-five percent
ceiling is allowed by § 406(b) of the Act, and that
courts may not use the “lodestar” method to
establish a reasonable fee. Where there is a contingency-fee
agreement between plaintiff and her attorney, the court is to
look first to the agreement and then test the agreement for
reasonableness. Gisbrecht, 535 U.S. at 807-08. In
determining reasonableness, the Court suggested that courts
should consider such factors as the character of
representation, the results achieved, whether the attorney is
responsible for any delay, and whether the benefits are large
in comparison to the amount of time counsel spent on the
case. Id. 535 U.S. at 808. The Court noted that the
comparison of amount of benefits to time spent might be aided
by submission of plaintiff's attorney's billing
record and normal hourly billing rate. Id.
Equal Access to Justice Act (28 U.S.C. § 2412(d)) (EAJA)
provides that when attorney fees are awarded both under that
statute and under § 206(b) of the Social Security Act
(42. U.S.C. § 406(b)) for the same work, “the
claimant's attorney refunds to the claimant the amount of
the smaller fee.” Pub. L. 99-80, § 3, 99 Stat. 186
Plaintiff's attorney provided a statement of the time
expended on Plaintiff's case, showing 38.5 hours of work
representing Plaintiff before this court since March 9, 2015.
(Doc. 27, Attach. 1, pp.24-26). Counsel asserts that an
attorney fee of $7, 096.71 was awarded by this court pursuant
to the EAJA, but that the award was reduced to zero because
of partial payment of outstanding obligations owed by
Plaintiff to the federal government. (406B Mot. 2). She
argues that her agreement with Plaintiff anticipated a fee of
25% of past-due benefits as allowed by the Social Security
Act, and that the Commissioner withheld $11, 776.70 (25% of
the past-due benefits) from her award to Plaintiff, to use
for payment of counsel's fee. (406B Mot. 1) (citing
Attach. 1, pp.15-20 (Ex. B)). Counsel requests a fee of $5,
526.70, recognizing that $6, 250.00 was awarded from the 25%
of past due benefits to pay attorney fees for representation
before the Commissioner, and requiring no refund for the EAJA
fee award which was credited to Plaintiff's account for
payment of her federal obligations.
Commissioner responded to Plaintiff's motion, noting that
she has no objection to payment of the fee. (Doc. 28, p.1).
accordance with the holding of Grisbecht, and after
reviewing the record and the parties' submissions, the
court finds an attorney fee of $5, 526.70 to be reasonable in
the circumstances of this case.
THEREFORE ORDERED that Plaintiff's motion for an attorney
fee of $5, 526.70 pursuant to § 206(b) of the Social
Security Act (Doc. 27) is GRANTED.
FURTHER ORDERED that pursuant to 42 U.S.C. § 406(b)(1)
the Commissioner shall pay Plaintiff's counsel the sum of
$5, 526.70 from Plaintiff's past-due benefits. Because
counsel asserts she received no attorney fee under the EAJA
and the Commissioner does ...